' MUHAMMMAD IRSHAD KHAN (MEMBER).-- The facts giving rise to the present appeal, briefly speaking, are that the appellant joined service of the Respondent-Authority as Overseer in the year 1964. He was working in the Machinery Pool Organization of the respondent till 1974, when he was sent on deputation to the Mechanised Construction of Pakistan Limited, hereinafter referred to as the M.C.P.L., a Private Limited, Company, floated in the Public Sector by the Government of Pakistan.
In 1977 he was promoted to the post of Junior Engineer while he was serving at Peshawar in the M.C.P.L. He was thereafter selected to serve at a Project of M.C.P.L. In Iraq where he served w,e,f, 1-9- 1980 till the expiry of his service agreement when he was repatriated to Pakistan vide letter dated the 1st of September, 1982, of the Project Manager M.C.P.L., Iraq. Consequently he reported for duty to the Executive Director, M.C.P.L., Lahore on 7-11-1982, and was posted in the said office as Officer on Special Duty. He continued to perform his duties as such till 30-6-1983 when by the impugned order, purportedly passed in exercise of the powers under section 17(1-A) of the WAPDA Act, 1958, hereinafter referred to as the Act, he was retired. He seeks to challenge the impugned order of his retirement by way of the present appeal which was filed on 4-8-1983. As said above, the impugned order was communicated to the appellant on 30-6-1983, the present appeal was filed four days after the expiry of the period of limitation accompanying by an application for condonation of delay wherein the delay has been explained to our satisfaction. We, therefore, condone the delay and proceed to consider the case on merits.
2. A preliminary objection on behalf of the Respondent-Authority about the competence and maintainability of the present appeal was raised by contending that this Tribunal has no jurisdiction to hear appeal against an order passed under section 17(1-A) of the Act which is immune from the scrutiny of Courts and Tribunal. The contention had already been raised and considered by us in a number of earlier cases but was repelled and, for the reasons given in those cases, the preliminary objection raised herein is also repelled. Further, without detracting from this conclusion, we would like to add that the additional ground urged by the learned counsel for the appellant that the provisions of section 17(1-C) are not attracted to the instant case because the appellant was retired, while section 17(1-C) of the Act covers the cases only of removal or termination of service and not retirement, is not without force. On merits the case of the Respondent-Authority is that it was reported by the M.C.P.L. Vide its letter, dated 30-1-1983 that during his stay in Iraq the appellant proved to be an inefficient officer and also there had been complaints of corruption against him. On consideration of this report he was, therefore, retired from service under section 17(1-A) of the Act.
3. Having carefully considered the submissions made at the bar and after perusal of the record made available to us, we have come to the conclusion that the stand of the Respondent-Authority has no legs to stand on. A certificate (Annexure-B to the Memo. Of appeal) by the Project Manager of M.C.P.L., Iraq, awarded to the appellant, on completion of his tenure there, is reproduced below with advantage:- "TO WHOM IT MAY CONCERN"
' Certified that Mr.Saeed Ahmed Butt s/o Mohammad Sultan Butt has been working with this Orgzanization as Junior Engineer (C) at K-2 Project Iraq w,e,f, 1st, September, 1980 to 30th August, 1982.
' He has performed the duties of handling Earth Moving Machinery as well as Civil Works of Earth Work, Land Levelling and Collectors Excavation to complete the area for handing over.
' During his stay I found him efficient, progressive, hard worker and second to none in performance.
' I wish him every success in his future life. Sd/- 'Project Manager The above certificate speaks itself that the allegations of inefficiency and corruption against the appellant are devoid of truth and appear to have been fabricated to make a base for the appellant's retirement. It may also be pertinent to reproduce below the comments offered by the Executive Director (Admn.), M.C.P.L., vide his letter, dated the 25th of May 1983, on a prescribed pro forma supplied by the Respondent-Authority : - "1. Identification Code No. (if issued).Nil.
2. Name of the EmployeeSaeed Ahmed Butt.
3. Father's NameHaji Muhammad Sultan Butt.
4. DesignationSub-Engineer in WAPDA.
Junior Engineer (Civil) in MCPL.
5. Date of Birth15-7-1937.
6. Date of Entry in Service12-5-1964
7. Date of assuming Present Appointment21-3-1977
8. Whether Government Servant or WAPDA EmployeeWAPDA Employee
9. Brief note givingHe is an inefficient justification forworker. Besides there action proposedare reports of corruption against him.
10. RECOMMENDATIONS
(a) Whether to beHe may be retired from removed or retiredservice. from service?
(b) Whether the employeeHe may be declared is to be declared unfitunfit for further for employment underEmployment." any other Government or Semi-Government or Autonomous or semi-Autonomous Organization or not?
' The wordings and phraseology of column 10 (Recomendations) of the above pro forma creates an unavoidable impression that the Respondent-Authority was pre-determined to remove or retire the appellant from service and the reports about the alleged inefficiency and corruption of the appellant were merely used as a cloak. We are, therefore, of the view that there was no valid justification for the Respondent-' Authority to deprive the appellant from his livelihood by retiring him prematurely.
' Another important aspect of the matter, in our view, is that the provisions of section 17(1-A) of the Act are applicable to a person employed by or serving in the WAPDA for the time being only. We mean to say that a person, though an employee of WAPDA yet is serving elsewhere on deputation, cannot be subjected to the provisions of the said section. If the appellant had demonstrated inefficiency or indulged in corruption in the M.C.P.L., the proper course of action was to repatriate him to his parent organization, the WAPDA, and it was thereafter that the Respondent-Authority could take any action against him which it considered just and expedient. In other words provisions of section 17(1-A) could not be availed to retire the appellant who was, at that time, serving in the M.C.P.L. On deputation. On this account also the impugned order is held to be incompetent and without lawful authority.
5. For the foregoing reasons,the appeal is accepted and the impugned order is declared to be unlawful, incompetent, mala fide and of no legal effect and is set aside accordingly. It is directed that the appellant shall be reinstated into service and shall always be deemed to be in service w,e,f, the date of the impugned order with all consequential benefits.
6. There shall be no order as to costs.