SHAH ABDUR RASHID (CHAIRMAN).--This appeal by Aftab Iqbal Butt and Appeals Nos. 143(R) of 1984 and 144(R) of 1984 filed respectively by Sh. Abdul Hameed and Shafqat Javaid, are being disposed of by this consolidated order, as the questions involved therein are, to a great extent, identical.
2. All the three appellants, who were employed as Meter Readers in Kot Abdul Malik Sub-division, were removed from service by WAPDA under section 17(1-A) of WAPDA Act, 1958, by orders, dated 31-7-1982.
3. Initially, notices to show cause, why penalty may not be imposed on them under WAPDA Employees (Efficiency and Discipline) Rules, 1978, were issued in the names of all the three appellants on different dates, but without taking any action on the show-cause notices, the aforesaid orders of removal were passed by the authority.
4. Aftab Iqbal Butt, appellant, made a departmental representation against the order of removal on 15-8-1982, while similar representations were made by Sh. Abdul Hameed and Shafqat Javaid on 16-8-1982. As no order was passed on their representations, Aftab Iqbal Butt filed petition before the Labour Court under section 25-A of the Industrial Relations Ordinance on 26-8-1982 and the other two appellants also approached the Labour Court by similar petitions on 29-8-1982. Aftab Iqbal withdrew the petition on 5-4-1983, while the other two withdrew their petitions on 4-4-1983. All the present appeals were filed before the Tribunal on 6-4-1983, challenging therein the orders of removal passed under section 17(1-A) of the WAPDA Act.
5. On behalf of respondents, the learned counsel has raised a preliminary objection that all the appeals are barred by time. It was argued that under section 4 of the Service Tribunals Act (LXX of 1973), an appeal would lie to the Tribunal within thirty days of the passing of the impugned order, whether original or final, and that an the appeals having been filed long after the passing of the orders of removal, they cannot be entertained as all are barred by time. No doubt, this is so, but we have held in so many cases that the position with regard to jurisdiction of the Tribunal was not clear in the beginning and it was only after the decision of the Supreme Court in the case of F. U.
Malik 1983 SCMR 663 that the employees of WAPDA became wiser and started coming to the Tribunal. In the present cases also, all the appellants being workers first went to the Labour Court and when they came to know the law, they immediately withdrew their petitions and came to the Tribunal direct without wasting any time. Applications for condonation of delay have also been filed. In our opinion, the delay which occurred on account of fluid position of law deserves to be condoned and we direct accordingly in all the three appeals.
6. On behalf of the appellants, it has first been argued that since the proceedings against them had been initiated under the WAPDA Employees (Efficiency and Discipline) Rules, the action of the authority in removing them from service under section 17(1-A) was illegal and a colourable exercise of jurisdiction. It was also urged that the provisions of section 17(1-A) have not been honestly applied with unbiased mind and the duty imposed on the authority was not properly discharged. In our opinion, the mere fact that proceedings against the appellants had been taken under the WAPDA Employees (Efficiency and Discipline) Rules would not affect the power of the authority in taking action under section 17(1-A), unless specific mala fide is established. The learned counsel for the appellants has referred to certain cases decided by this Tribunal, which are to the effect that when disciplinary action has been initiated, resort to section 17(1-A) was uncalled for. These decisions of the Tribunal had gone up to the Supreme Court, but were not approved. It may be mentioned here that the view held by the Bench which decided the appeals on the question of jurisdiction of the authority in taking action under section 17(1-A) during the pendency of proceedings under the WAPDA Employees (Efficiency and Discipline) Rules was not shared by all the Members of the Tribunal, and there are cases in which contrary view has been taken. The matter is, however, clinched by the decision of the Supreme Court in Civil Appeal No. 805 of 1984 Water and Power Development Authority v. Amjad Hidayat Butt. In view of what we have observed, the question of colourable exercise of jurisdiction does not arise.
7. The learned counsel for the appellants then argued that in passing the order of removal under section 17(1-A), the authority has violated its own instructions contained in their Office memorandum No. GM(Admn.)/AD(REV)/05001/(A)/27049-268, dated the 17th April, 1982. That Memo reads as follows:- "Further to Office Memorandum Nos. C/79/SO(Cord)1:1(1106)A/ 48280-880, dated 17-10-1979 and C/81/A.D.(Sectt)/79/17721-920; dated 22/26th April, 1981, on the above subject, I am to say that comprehensive instructions communicated to all concerned for action against corrupt and/or inefficient employees under' section 17(1-A) of the WAPDA Act, 1958, are not being apprehended properly by the authorities initiating the recommendations. The position is clarified as under:-
(2) Summary powers under section 17(1-A) are to be exercised in respect of those employees against whom concrete evidence to achieve desired results through proceedings under (E&D)
Rules was not forthcoming, but there was tangible material leading to moral certainty of truth of allegations against the employees desired to be dealt with under section 17(1-A).
(3) Recommendations should be made in cases listed below:-
(a) Employees who had established reputation of being corrupt, or are reasonably considered to be corrupt, and/or are persistently inefficient. In cases where action was desired to be taken for persistent inefficiency of the employees, extracts of A.C.Rs. Justifying the recommendations will be attached. Any warning issued to him or disciplinary action taken against him should also be annexed.
(b) Employees who were tried in Courts on criminal charges but had escaped punishment for lack of sufficient evidence, or for reason of witnesses having been won over or on technical grounds with a precise detail of the circumstances in which offence was committed. Needless to add that General-Manager/Chief Engineer initiating the recommendations should be morally convinced that charge against the employee which had failed in Court of law from any of the above said reasons was not groundless, and his further continuance in service was not in the interest of the authority.
(c) The employees who have two or more punishments to their discredit, and have not reformed themselves.
(4) It should please be noticed that High Courts/Supreme Court have upheld the validity of subsection (1-A) of section 17. However, the recommendations should not bear the least tinge of mala fide or any abuse of power. It is, therefore, essential that each and every case be fully analysed and sufficient facts stated in the recommendations on a pro-forma (Annexed) should be prepared in case of each employee and duly signed by the General Manager/Chief Engineer concerned."
The learned counsel argued that in the present cases, none of the facts mentioned in para. 3 of the office memorandum existed and, therefore, the authority went outside the guidelines which it has laid for itself for taking action under section 17(1-A). The main argument of the learned counsel in this respect was that one a policy of self-restraint is formulated by an authority, it is bound by its own action and cannot go out of the said policy. Reliance in this respect was placed on certain observations made in De Smith's 'Judicial Review of Administrative Action' (4th Edition) at page 74.
The relevant portion of the observations relied upon by the learned counsel reads as follows:- "It must not be assumed, however, that departmental communications issued in the form of circulars, notes for guidance or letters to local and regional authorities or press notices, are necessarily destitute of legal effect. It is possible that in some circumstances, at least the promulgation of informal rules or the announcement of a policy may give rise to procedural objections, or be used as evidence of the matters that may legitimately be considered in the exercise of discretion or even create a form of estoppel. And it may not be totally fanciful to imagine that a public authority may be held to have abused its discretion by clearly misinterpreting its own rules that it purported to apply. In one instance the Courts have given legislative effect to what is ostensibly a purely administrative announcement."
In our view, the learned counsel has gone too far when he says that the WAPDA cannot go outside the guidelines which it has laid for itself. The observations of De Smith taken from certain judicial pronouncements cannot be read in isolation from the rest of the text. In the beginning on page 73, the following observations had been made:-- "Secondly, departmental instruments or announcements which, although general in application, normally neither create legally enforceable rights nor impose legally enforceable obligations since they are not made pursuant to express statutory authority. Rules of this kind are usually referred to as examples of 'administrative action.' Circulars issued by the Department of the Environment to local planning authorities on the manner in which they should exercise their statutory powers fall into this category, as do the rules formulated by the Foreign and Commonwealth Office to govern the exercise of the prerogative power over the issue and withdrawal of passports. And the same is true of an announced amnesty for illegal immigrants who satisfy certain criteria. Just as the Crown is without authority to alter the general law of the land by prerogative, so are its servants and other public authorities without inherent authority to impose legal duties or liabilities or to confer legally enforceable rights, privileges or immunities on the subject. Hence the extra-statutory concessions to tax-payers that the Inland Revenue and Customs and Excise authorities announce from time to time cannot be relied upon in any Court of law, although they have been styled 'administrative quasi-legislation'. "
Thus, it is clear that no authority is bound in law to observe its own instructions if they have no statutory backing. The portion of the text relied upon by the learned counsel refers to exception and not to the general rule. We are, therefore, unable to agree with the contention of s the learned counsel that the authority cannot go behind what it has laid in the Office Memorandum of 17th April, 1982.
8. Apart from what we have stated above, the power of the authority is regulated by the Pakistan Water and Power Development Authority Act (West Pakistan Act No. XXXI of 1958). Section 17(1-A) ibid does not talk of any restriction whatsoever. The authority has power to make Regulations in accordance with the provision of section 29 of the Act. This section is to the following effect:- "For the purpose of carrying into the effect the provisions of this Act, the authority may, with the approval of the Government, frame such regulations as it may consider necessary or expedient."
It clearly shows that when the authority makes any Regulation, it must have the approval of the Federal Government. There is nothing to show that in issuing the Office Memorandum of 17th April, 1982, the authority obtained the approval of the Federal Government. There is then the language of subsection (1-A) of section 17 itself, which provides that action thereunder can be taken 'notwithstanding anything contained in any rule, order or instruction issued by the authority itself'.
Thus, the statute itself provides that if any restriction is placed on the jurisdiction of the authority, that would be contrary to the power, which it is expected to exercise.
9. The legal objection apart, the Office Memorandum of 17th April 1982 when read as a whole, would show that the guidelines in para. 3 are only illustrative and not exhaustive. The main guidelines are contained in para. 2 which is clearly to the effect that when concrete evidence to achieve the desired result is not forthcoming, recourse to disciplinary action may not be taken and if there is tangible material leading to moral certainty or truth of allegations, recommendation for action under section 17(1-A) should be made.
10. Another aspect of the case is that Office Memorandum of 17th April, 1982 gives instructions to the subordinate officers regarding making of recommendations for action under section 17(1-A). This Office Memo does not lay down that the authority itself shall not go beyond 1 the guidelines contained in the said Office Memorandum.
11. For the reasons stated above, we are firmly of the view that the authority is not bound to act within the fore-walls of the Office Memorandum of 17th April, 1982 and its powers under section 17(1- A) are unrestricted, but subject to further scrutiny by this Tribunal on appeal.
12. We now come to the merits of each case separately.
APPEAL No. 142(R) of 1984 BY AFTAB IQBAL BUTT.
The allegations against this appellant were that in eighteen cases under his jurisdiction, he had intentionally accumulated the reading units and had supplied less reading for 9/1981 for ulterior motives, as reported by the S.D.O. Another allegation against him was that in seven cases,, he had supplied wrong units causing inconvenience to the consumers. The conclusion to the above effect was reached on examining the readings taken by the appellant and the readings checked up by the L.S.G. And the S.D.O. The learned counsel for the appellant wanted to justify the readings under some items and stated that the possibility cannot be excluded that either the L.S.G. Or the S.D.O.
Made wrong readings or the consumer himself reversed the meter. These are too far-fetched ideas and mere remote chance of such an eventuality cannot be taken into consideration.
13. Apart from what has been given in the show-cause notice the department has placed on file certain material which goes to show that the record of the appellant had not been clean. On 13-7- 1981, a charge-sheet was served upon' him for bogus reading. An inquiry was held. The appellant was given the opportunity of hearing, but he did not avail it of. On 15-8-1981, the S.D.O. Caller his explanation for supplying bogus reading. The appellant did not reply to the explanation. On 11-1- 1982, a show-cause notice was served on the appellant. He was asked to appear for personal hearing, but he failed to comply with the direction. Again on 19-1-1982, the appellant's explanation for bogus reading was called for. On 29-3-1982, a complaint was received against the appellant.
He was asked to explain, but he did not send any reply. This and other material brought on record clearly shows that the appellant was not a person who could have been safely entrusted with the work which he was required to perform. We uphold the order of the Authority passed under section 17(1-A) and dismiss this appeal with no order as to costs.
APPEAL No. 143(R) of 1984 BY SH. ABDUL HAMEED.
The charge-sheet served on the appellant shows that on different dates in September, October and November, 1980, he supplied bogus readings in at least five cases. The department has furnished another material showing that on 29-1-1981, a show-cause notice was served on the appellant for supplying bogus reading. A charge-sheet was served on 9-2-1981 for similar misconduct. Another show-cause notice was served on 8-3-1981. On another occasion on 13-12- 1981, his explanation was called for. On 14-1-1982, still another show-cause notice was served on the appellant for recording bogus reading. His explanation was also called for on 2-3-1982. He was punished on one occasion and penalty of stoppage of increment was imposed on him.
14. In view of the above record of the appellant, order of removal under section 17(1-A), in our opinion, was quite justified, which we uphold and dismiss this appeal with no order as to costs.
APPEAL No. 144(R) of 1984 BY SHAFQAT JAVAID.
Show-cause notice issued in the name of the appellant shows that there were allegations against him for intentionally accumulating the reading units in respect of at least twenty-one consumers during September, 1981. Similarly, there were allegations of making wrong reading in seven cases.
Apart from that, the department has placed on file further record showing that the appellant's explanation was called for on 10-9-1981 for supplying bogus reading. On 13-12-1981 also similar explanation was called. On 5-1-1982, show-cause notice was issued for recording bogus reading.
On la-1-1982, explanation was called for supplying bogus reading. On 10-3-1982 explanation was called for the delay in submitting the meter reading. On 17-3-1982, explanation for bogus reading was called for. Further record is also placed on file which shows that the appellant was not serving with clean hands and, as such, had rendered himself unfit for service of the WAPDA. In our opinion, the authority has rightly exercised its powers under section 17(1-A). We uphold the order of removal of the appellant from service and dismiss this appeal with no order as to costs.
A. A.