1. NASIM HASAN SHAH, J.--One Abdul Qayyum Arif, a Contractor of WAPDA, levelled very serious allegations of corruption and malpractices against the Chairman and other Senior Officers of the Authority. The said Contractor was arraigned before Summary Military Court for trial for defaming them. The respondent, who was Chief Auditor of the Authority made a statement before the Summary Military Court as a defence witness in that trial wherein; according to the Authority, he levelled defamatory and baseless allegations against the Chairman and other officials of the Authority with the malicious intent of defaming them. Accordingly, on 31-7-1980, he was issued the following notice:-- "It has been reported that while appearing as a defence witness in the case of Mr. Abdul Qayyum Khan Arif, in the Summary Military Court, you have wilfully acted against the interests of the Authority and have made serious baseless allegations against the Chairman WAPDA, and other officials of the Authority.
2. In your statement you have made the following derogatory and frivolous remarks on matters about which you had no personal knowledge and you expressed uncalled for opinion and raised certain presumptions for which you were not legally competent to do as a witness in a Court of Law:--
(a) That there must have been some personal motives (for the Chairman) for waiving the claim of Rs.40 lacs against Messrs A.E.G. Kinia. That you 'thought' that the Chairman WAPDA, Maj. Gen. (Retd.) Fazli Raziq, had taken some amount by waiving the aforementioned claim against the firm.
(b) That WAPDA did not like to deal with the Holland firm through the local agent, and you 'thought' that the commission of the local agent had been shared by WAPDA officials.
(c) That the delay in the finalization of contract (500 KV Tower) was to favour an Italian firm, namely, S.A.E. Further, award of the contracts of 500 K.V. Tower to S.A.E. Had some personal motives in the form of some kick back.
(d) That S.A.E. Was not favoured without any personal motive and that the Authority delayed the contract intentionally.
(e) That you invited Mr. Abdul Qayyum Arif, to your house and during the course of your meeting he did not provide you any concrete proof in support of the allegations he had levelled against the Chairman and his associate officers. It is evident that you had the intention to defame the Chairman and the senior officers of the Authority knowing fully well that Mr. Arif had no concrete proof against the Chairman.
(3) It is also brought to the notice of the Authority that you, yourself contracted Mr. Arif and apparently volunteered to give a statement in his favour.
(4) It has been established that you levelled the above allegations with a view to malign and defame the Chairman and other senior officials of WAPDA which amounts to breach of 'Service Discipline' and 'unbecoming of an employee of the Authority' and by doing so, you are guilty of 'misconduct' within the meaning of rule 2(5) of the West Pakistan WAPDA Employees (E t D) Rules, 1978.
(5) Under rule 5(i.e)(a) of the West Pakistan WAPDA Employees (E D) Rules, 1978, you are hereby required to submit your explanation within 10 days of the receipt of this letter as to why one or more of the major penalties as defined in rule 4 of the aforementioned Rules, should not be imposed upon you, for levelling the abovementioned false and frivolous allegations against the Chairman WAPDA, and other senior officers stating, at the same the, whether you desire to be heard in person.
6. If no reply is received within the stipulated period, it will be presumed that you have no defence to offer and ex parte action will be initiated against you."
2. The respondent, instead of submitting a reply, asked the Authority to furnish him with report on the basis of which the notice was issued and also desired to be shown various files and other records.
3. None of these documents were supplied or shown to him on the ground that these demands were nothing more than dilatory tactics. In the result, on 26-1-1981, without any further formalities it was decided to impose the major penalty of dismissal from service on the respondent under rule 4 of the Pakistan WAPDA Employees (E & D) Rules, 1978, on the charges of misconduct.
4. The respondent challenged the aforesaid order of dismissal by filing an appeal before the Federal Service Tribunal. The said learned Tribunal, by a detailed and elaborate judgment, dated 3-11-1983, accepted the appeal and ordered the petitioner-Authority to re-instate him in service with effect from the date of his dismissal, together with all the consequential benefits.
5. According to the Tribunal the crux of the question before it was "whether there was sufficient justification for the respondent (petitioner herein) to dismiss the appellant (respondent herein) from service on the basis of the evidence tendered by him before the 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."
6. The Tribunal found that the procedure adopted by WAPDA was highly arbitrary and an abuse of the power conferred on it by the Efficiency and Discipline Rules. In this connection it observed:-- "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 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."
7. In the instant case, it was noted by the Tribunal that:-- "By the very nature of the allegations against the appellant (respondent before us) and by virtue of the fact that the appellant (respondent before us) denied the allegations and undertook to refute them, the presumption that the charges against him had been established was baseless and an at of wishful thinking on the part of the respondent (petitioner before us). All other actions taken thereafter culminating in the impugned order of dismissal were based on weak legal footing and cannot, therefore, be sustained."
8. It, therefore, held that on this ground alone, the impugned order of dismissal could not be upheld and had to be set aside.
9. On the merits, the Tribunal found that, apart from the question whether the statements made by the respondent before the Summary Military Court were objectionable or not, his evidence contained a number of serious allegations against the Chairman of WAPDA. However, that, by itself, did not make the statement objectionable either under the civil or the criminal law or under the Rules of the Department. It went on to observe that no independent authority had given the finding that the statements made by the appellant (respondent herein) before the Summary Military Court, were false, frivolous, baseless, malicious or defamatory. Even the authentic version of the respondents' deposition before the said Court was not available because the same had not beer, supplied by the Martial Law authorities, in spite of requests. But the fact remained that although the Summary Military Court had convicted the Contractor, Abdul Qayyum Arif, the higher Martial Law authorities had set aside the conviction. This circumstance did not support the allegation that the statement of the respondent before the Court was actionable. After making an exhaustive examination of the entire circumstances, the Tribunal recorded the following important observations:-- "However, even if it were conceded that the appellant had made statements which were, besides being baseless, defamatory of the Chairman and his colleagues, it should have been treated as a simple case of misconduct of the appellant in relations to the Chairman and his colleagues and not one involving 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 MIA, 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."
10. Again, it went on to observe:- "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.I.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.
11. Into the contract for the erection of 210 M.F Guddu Thermal Power Station to a Russian Firm for an amount which exceeded the lowest offer by more than $ 33 million, including a difference of about $ 20 million 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)(d) of the Prevention of Corruption Act 11 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 preference to the lowest tendered, that the circumstances and documents threw the liability of the grant of the illegal contract to the said firm on 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 to 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 did not know on what basis he makes this claim, but there is ample evidence on record, including Memo. No. S.O (Co-ord.)/02018/59-81, dated 14th October, 1980, issued by the Secretary, WAPDA to the appellant and to other employees of WAPDA, asking them to attend the F.I.A. Office for being examined by them at the the and date indicated to show that matters relating to the affairs of WAPDA were under investigation by the Agency. In the face 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."
12. The Tribunal accepted the suggestion made by WAPDA that the petitioner might have contacted Abdul Qayyum Arif and was cited as a witness after getting into touch with him and in this connection observed:-- "This might appear to be objectionable from the strictly departmental point of view. 'But, it could be taken to be an at of indiscipline only if it were held that a departmental subordinate 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 o: 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."
13. The case was summed up as follows:-- "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 structures 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 understand the basis of the charge of misconduct against him. He was also not given adequate opportunity of putting up his defence, so much so that he was not even given access to the files and documents he wanted to make use of in his defence. He was thus condemned unheard. He was also shunted 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 use 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 by getting the matter decided by the Authority itself, in the very first instance.
14. 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."
15. Syed Iftikhar Ahmad, learned Deputy Attorney-General raised several contentions in support of this petition for leave to appeal against the above order of the Tribunal. He submitted that the Tribunal erred in law in assuming that the onus lay on the authority to show that the defamatory statements made by the respondent before the Summary Military Court were correct and made in the public interest. It was for the accused officer to show that the statements were correct and were in the public interest. The Tribunal also misconstrued the law that the statements made by the respondent before the Summary Military Court were protected under the law. He also submitted that the Tribunal had erred in assuming that the defaming of the Chairman and other officers of the Authority did not amount to defaming the authority itself and it was not justified in drawing a distinction between the Chairman and Members of the WAPDA as Corporate Authority.
16. He further argued that the competent authority having taken a decision to proceed against the respondent under rule 5(4), the Tribunal had erred in considering this decision to be unjust and based on bad faith because he did not have any material before it.
17. These submissions do not affect the weighty judgment delivered by the Service Tribunal. The position was that on 20-7-1980 the respondent had made a statement before the Summary Military Court and within 11 days he was issued a notice on the 31st July, 1980 alleging that he made baseless and frivolous allegations in the aforesaid statements, which were not in his personal knowledge and intended to defame the Chairman and other members of the Authority. Extracts of the aforesaid statement, which was allegedly made by him, were then tabulated in the notice.
18. However, the fact remains that the authentic text of the statement recorded by the Summary Military Court has neither been supplied to the petitioner-Authority or the respondent. In fact, as late as 30-12-1980, the C.O.S. To the Martial Law Administrator informed the respondent herein that as the proceedings of the said case was still with the Headquarters Deputy Martial Law Administrator, Lahore, a copy of the proceedings could not be supplied till such the until the proceedings were countersigned by the authority concerned, according to the relevant rules of the Manual of Pakistan Military Law. Throughout the course of the proceedings the respondent kept on requesting for being supplied the authentic copy of the statement recorded by the Summary Military Court, but the same was never supplied to him. The entire action against the respondent was founded on the statement made by him before the Summary Military Court. However, no authentic text of the same was available with the authority and the notice of alleged misconduct was based on some unauthentic copy of the alleged statement made by the respondent. In these circumstances, there was no firm foundation, on which the allegations of misconduct were based.
19. To describe these allegations as having been established "baseless", derogatory" and "defamatory", when their authenticity itself was not established, was highly improper and unjustified.
20. Even otherwise the question whether a statement made before a Court, which has never been published or publicized outside the Court and the Court itself in its decision has not found it to be false, frivolous or derogatory can ever be considered defamatory, is doubtful. The assumption made by the Authority that it could itself hold the statement as "defamatory" and "baseless" was a serious misconception.
21. After having gone through the judgment of the Service Tribunal and having considered the arguments of the learned Deputy Attorney --General and the learned counsel for the respondent we do not find that any interference with the judgment impugned before us is made out.
22. This petition, accordingly, fails and is dismissed hereby.