' MR. JUSTICE SHAH ABDUR RASHID (CHAIRMAN).--The appellant, Syed Shah a Senior Engineer of the Water and Power Development Authority (WAPDA) was retired from service under section 17(I-A) of Water and Power Development Authority Act (W. P. Act No, XXXI of 1958) (WAPDA Act), by order dated 10th April, 1982. He has challenged the order of his retirement by invoking the jurisdiction of this Tribunal under section 4 of the Service Tribunals Act (LXX of 1973) read with section 17(1-B) of the WAPDA Act.
2. The learned counsel for the respondent has raised a preliminary objection that this Tribunal has no jurisdiction to interfere in the order of the Authority made under section 17(1-A) of the WAPDA Act, as the language of the said section is clear enough to indicate that the order of the Authority is final and also because section 17(1-C) ibid ousts the jurisdiction of-all the Tribunals including the Service Tribunal. This precise question had come earlier in the case of Mian Mahmood v. Chairman WA FDA (1) and we had held that the Tribunal is seized of full jurisdiction to set aside modify or alter the order of the Authority made under section 17(1-A) ibid.
3. The learned counsel has, however, urged that the conclusion drawn by this Tribunal in the case of Mian Mahmood is contrary to the intention of the law and some enunciation of the other superior Courts and that this Bench should consider the revision of its earlier decision. He also argued that even if the view taken in Mian Mahmood's case is not revised, the present case falls under a different head, inasmuch as in the present case the order impugned is that of retirement and not of removal from service, whereas the case of Mian Mahmood was of removal which might be taken to attach stigma to the officer concerned.
4. The learned counsel has referred to the case of Lt. Col. Farzand All and others v. Province of West Pakistan through the Secretary Department of Agriculture, Government of West Pakistan, Lahore (2). In that case, the question of the jurisdiction of the Courts to interfere with the orders of the retirement in public interest, was involved and the Court made the following observations :- "Compulsory retirement which carries with it no stigma and no vindictiveness against the person concerned is different from removal from service or dismissal. There may be a variety of reasons which may impel a Government to compulsorily retire an officer on his having completed the period of service qualifying him for pension and {{FOOTNOTE}}
(I) 1983 P C (C. S.) 556 (2) PLD 1970 SC 98 ' Government alone is the best judge of these reasons. It is not possible for the Court to sit on judgment over the action of Government, if from materials disclosed it does not appear that the action taken was merely in colourable exercise of or in abuse of power. It must of necessity be left to the Government itself to decide as to whether retirement of the officer concerned was in public interest or not. The Government, it is said, has an absolute discretion to retire any of its officers at this stage. In the absence of any words in the statute limiting the discretion of the Government this must be so, for, it is difficult to lay down any yardstick by which "public interest" can be measured in this connection. There may well be circumstances apart from inefficiency or dishonesty which may be relevant for considering the suitability of an officer for being continued in public service. An over punctilious or over fastidious person may well in certain circumstances be just as unsuitable as a lax or careless officer having regard to the nature of his employment. But this is a matter which the employer alone can determine and, therefore, it must of necessity be left to the subjective satisfaction of the employing authorities".
' It is pertinent to point out that in the said case, the question had come up in a writ petition where the Court can exercise extraordinary discretionary jurisdiction only when the order is without lawful authority or jurisdiction. This Tribunal, on the other hand, possesses quite different jurisdiction and power being a Tribunal of appeal and can interference even on question of facts. In other words, the Tribunal has the same jurisdiction in appeal which a departmental authority possesses in passing the original or first appellate order. In this respect, we are supported by the dictum o the Supreme Court in the case of M. Yam in Qureshi v. Islamic Republic of Pakistan and that of the Lahore High Court in the case of M. Aslam Bajwa v. Federation of Pakistan . In these cases, it was 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. Another case relied upon by the learned counsel for respondent is that of A. M. K. Leghari v. Government of Pakistan through Establisment Secretary and others . That case also related to the period when the Service Tribunals Act (IX of 1973) had not come into operation and the question had arisen regarding jurisdiction of Courts to interfere with the order of the departmental authority in writ jurisdiction.
5. The learned counsel for respondent then referred to the case of Abdul Shakoor v. WAPDA where the last para. Of the judgment gives the impression that section 17(1-C) ibid ousts the jurisdiction of the Service Tribunal. If this is so, we are unable to pursuade ourselves with that conclusion for the reasons we have already given in the case of Mian Mahmood.
6. The learned counsel also at the end of arguments pointed out that the appellant has come to the Tribunal without exhausting the departmental remedy, contrary to the provisions of section 4 of the Service Tribunals Act (LXX of 1973). In this contention, we find no substance, inasmuch as there is no provision in any law or rule giving the employees of the WAPDA a right to approach any departmental authority for setting aside an order made under section 17(1-A) ibid. The restrictive' provisions of section 4 of the Service Tribunals Act (LXX of 1973) would apply only where a remedy is provided for, but is not availed of. Since there is no other remedy available to the appellant except1 2 3 4 by way of appeal C to Service Tribunal, his appeal is quite competent and cannot be thrown out, simply because he did not make any departmental representation against the impugned order.
7. The learned counsel for respondent also made a request that this case should spend till the case of Mian Mahmood which is now in appeal with the Supreme Court, is decided. We are afraid, we cannot agree to this request for the reason that there are numerous cases of the WAPDA employees in which similar questions are involved, and if we stay the proceedings in one case, we would have to stay the proceedings in all the cases.
8. We now come to the facts of the case. Although section 17(1-A) ibid does not require assigning of any reason for removing its employees, nevertheless it does not say that the employees can be removed or retired from service without any reason. In fact, the Authority in order to stop indiscriminate recommendations for removal and retirement made by the superior officers, laid down the guidelines for them, where they were advised that such recommendations should be made in particular circumstances.
9. We have examined the appellant's case. The record which was made available to us shows that the General Manager, Tarbela, had recommended the retirement of the appellant from service, for the reasons of this being inefficient and unwilling worker. The documents on the basis of which the recommendation was sent to the Authority have not been made available to us. We repeatedly asked the learned counsel for respondent to let us know the precise reason for which the appellant was retired from service. He stated that the appellant was "living beyond his means". Nothing was however, brought on record in this respect, except the latest Annual Confidential Report of the appellant covering the period 20th March, 1981 to 30th June, 1981. However, the same officer earlier recorded the report of the appellant for the year ending 30th June, 1981, wherein the appellant was not only graded high, but also recommended for "accelerated promotion". The report covering the period 20th March, 1981 to 30th June, 1981 was uncalled for, inasmuch as, as already stated, the Reporting Officer in the earlier report which he signed on 20th April, 1981 depicted a different picture. In fact, the report for the period 20th March, 1981 to 30th June, 1981 is not a valid document, inasmuch as, it has not been signed by the countersigning officers, and shall be deemed to have been taken off the file.
10. The appellant has raised the plea of mala fide also. However, if mala fide on facts is not established the very action of the Reporting Officer in changing his opinion and writing a report for a part of the period twice and not getting it signed by the countersigning officers, amount to mala fide in law.
11. For the reasons stated above, we are firmly of the view that the order of the retirement of the appellant is not justified. We accept this appeal, and set aside the order of retirement of the appellant and reinstate him into service with all the consequential benefits. It is reported that the appellant, after his retirement, has joined as Assistant Professor in the Engineering University. If it is so, then the salary earned by him in his new employment and other income, if any accruing to him, shall have to be deducted according to the rules, when he joins WAPDA again. However, there shall be no costs in this appeal. PLD 1980 SC 22 PLD 1974 Lab. 545 1980 SCMR. 909 PLD 1983 Lah. 404 revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.