CH. HASAN NAWAZ (MEMBER).--We are concerned in this judgment with the disposal of five appeals, giving rise to identical questions of law and facts, filed under section 4 of the Service Tribunals Act, 1973 by the appellants against the orders of their removal from service passed by respondent No, 1 on 12-1-1984 under section 17(1-A) of the West Pakistan WAPDA Act, 1958.
2. Out of these appeals, the first three were accepted by the Tribunal through judgment dated 9-6- 1984 where it was held that the impugned orders were arbitrary, discriminatory and had not been passed in bona fide exercise of powers and that they could not, therefore, be legally sustained. The appellants were ordered to be reinstated in service from the date of removal with all consequential benefits.
3. The other two appeals, which were heard by a different Bench, were accepted on 15-12-1984, following the Tribunal's earlier judgment dated 9-6-1984 in the other three appeals, with the observation that "it is not possible to give a different decision, especially when the arguments advanced by other Bench carried considerable weight and that, under the circumstances, they had no choice but to dispose of these appeals in the same manner in which the other appeals had been decided". Here again, the impugned orders were set aside with all consequential benefits.
4. On appeal, the Tribunal's judgments dated 9-6-1984 and 15-12-1984 were set aside by the Supreme Court and the cases were remanded for a fresh decision.
5. During the course of arguments before the Supreme Court, the respondents' (now appellants) learned counsel argued that the Tribunal had not addressed itself to various points raised in their appeals, on a finding that the action taken against them was vitiated on account of arbitrariness and mala fides. He submitted that they were entitled to get the orders of the removal from service set aside on the basis of other pleas taken by them in their appeals, which had not been decided by the Tribunal.
6. On these arguments the Supreme Court made the following observations: "We have gone through the memorandums of appeals submitted by the respondents and agree that there were other pleas raised by them which needed consideration and have not been decided. In these circumstances, the orders of the Service Tribunal dated 9-6-1984 in Civil Appeals Nos, 805, 806 and 808 of 1984 are set aside and these cases remanded back to the Service Tribunal, for decision of these appeals afresh in the light of the other pleas raised by them."
7. When the Tribunal again became seized of the matter on remand, all the five appellants made applications for an order allowing them to add certain other pleas to those already taken, by amending their appeals. Their petitions were, however, rejected by the Tribunal on 27-3-1986 on the ground that there was no justification for the addition of other pleas.
8. The appellants again went to the Supreme Court with civil petitions to get the necessary relief.
They were, however, dismissed by the Court on 30-6-1986 and 23-11-1986 with the observation that they were incompetent on account of having been directed against an interlocutory order passed by the Tribunal. It may here be mentioned as a material circumstance that during the course of arguments, the petitioner's learned counsel sought clarification of the Court's intention while disposing of their appeals by a consolidated judgment passed on 14-12-1985, in respect of the question raised in the miscellaneous petitions. It was observed that if the petitioners are able to show that the action against them was indeed actuated by mala fides, the Tribunal would not be debarred from taking note of this fact.
9. As it could be understood from the arguments at the Bar during fresh hearing of the appeals, there was some confusion regarding the scope of examination of the matters involved, to be made by the Tribunal. It was contended by the respondents' learned counsel that the question of mala fides and discrimination having already been finally decided by the Supreme Court, could not be raised again after remand and that the appellants could rely only upon other pleas which had not been considered and decided by the Tribunal in its earlier judgment and in respect of which the Supreme Court had not given any decision. On the other hand, the appellants' learned counsel claimed that on remand all the questions raised in the appeals have become alive for adjudication, including those in respect of mala fides and discrimination. Before proceeding further, it is, therefore, necessary to determine the gamut of our examination.
10.In this respect, the following observations of the Supreme Court in their judgment dated 14-12- 1985 are important: "The Tribunal, in the said cases, based its decision mainly on the hypothesis that the cases of all the persons who were scrutinised by the Enquiry Committee stood on the same footing and that WAPDA was guilty of according different treatment to the different officers who were all involved in the alleged misconduct and that it had, thereby, been guilty of unfair discrimination. Hence, its order, insofar as the three respondents are concerned, was arbitrary and mala fide."
11. What followed is also material: "We regret that we cannot subscribe to this approach of the Tribunal. No basis was laid by it for asserting that the cases of all the officers, whose conduct was being inquired into by the Enquiry Committee, were identical. Unless the identity of interest and conduct of all the officers is established, the mere fact that a particular kind of action has been recommended against some of them and another type of action recommended against others, cannot make the action ordered as unjustified discrimination."
12. It is clear that the Supreme Court took due notice of the Tribunal's approach to the question of discrimination in its judgment dated 9-6-1984. It was based on the surmise that the cases of all the persons concerned stood on the same footing and that WAPDA was guilty of according different treatment to different officers, irrespective of whether they were equally involved in the alleged misconduct. It was this approach which did not find favour with the Supreme Court on the ground that no basis had been laid by the Tribunal for an assertion that the cases of all the officers involved in the matter were identical. This gave rise to the observations that "unless the identity of interest and conduct of all the officers is established, the mere fact that a particular kind of action has been recommended against some of them and another type of action recommended against others, cannot make the action ordered as unjustified discrimination". In my view, they are clearly suggestive of the fact that the Tribunal should have laid a basis for the averment that the cases of all the officers, or at least some of them, were similar to those of the appellants, before giving a finding of discrimination, as could have inserted arbitrariness and malice into the impugned order.
In this view of the matter, therefore, it is possible to make an address, in this judgment, to all the facts which would go to establish that different treatment was given to some officers other than the appellants, involved in the same matter on identical allegations and proved to have been equally liable. It can be seen that lenient view of the matter was taken by the Authority in so far as they were concerned, in spite of the fact that they had been found guilty of similar irregularities causing monetary loss even, though it might have been lesser in quantum.
13. Even the question of mala fides can also be gone into as result of the Supreme Court observations in their order dated 30-6-1986 that if the appellants are able to show that the action against them was indeed actuated by mala fides, the Tribunal would not be debarred from taking note of this fact. These observations apart, it should be legally possible for us to determine this question of mala fides in consequence of a finding regarding discrimination, which we can record on the basis of the Supreme Court's judgment; and which is so for the simple reason that a discriminatory action is evidently bound to be arbitrary, mala fide and in violation of the principles of natural justice.
14. Fair and effective examination of point involved, would require recapitulation of the facts of the case. Shahid M. Akhtar appellant remained incharge as Executive Engineer of the Street Light Division, Lahore in the year 1981 and then Gulberg Construction Division till 18-5-1983 before his transfer to Kasur. Amjad Hadayat Butt appellant was incharge of Shandara Division as Executive Engineer from 1981 to 28-8-1982, the date on which he was suspended. Mr. Muhammad Makhdoom Tariq appellant remained in the same capacity in Civil Lines Division, Lahore from year 1981 to 28-8- 1982 when he too was suspended. Kh. Abdul Waheed appellant remained posted as an Executive Engineer Chunian till May, 1981 before his transfer as Deputy Director WAPDA; whereas Zameer Hussain Bhatti appellant had been incharge of Islam Pura Division, Lahore from the same year to 4- 10-1982.
15. A special audit was conducted in the Lahore Region of the WAPDA in respect of the years 1980- 81, 1981-82 on certain complaints of misuse of official powers in the matter of purchase of store materials; which resulted in the Chief Auditor's report on 6-10-1982. On scrutiny of this report, an Inquiry Committee was constituted with the Chief Engineer (P.I.I.) as convener, the Director (Surveillance) and the Deputy Chief Auditor, Lahore Region as Members, through General Manager
(D) Office Order dated 26-10-1982, for carrying out a detailed inquiry. The Inquiry Committee submitted an exhaustive report, whereupon a board consisting of General Manager (Administration), General Manager (Distribution) and G.M.F. (P) was constituted to review the findings of the committee and submit its recommendations to the authority.
16. In their report dated 17-12-1983, Review Board noticed the following irregularities in the region during the relevant period: "(a) Huge purchases were made by the Executive Engineers which were far above their actual requirements. When the Inquiry Team went around they found many items still lying in the stores.
(b) Many purchases were made from bogus firms or firms which were not dealing in those items e.g. steel furniture were purchased from dealers of electrical goods.
(c) Letter pads of some reputable firms were used but in actual fact they were never issued any tender enquiry. Excessive rates were paid causing considerable financial loss to the Authority. The total loss as determined by the Inquiry Committee comes to Rs,90,62,862.59.
(d) Practically every tender was issued as emergent tender to keep the purchases within the financial powers of the Executive Engineers. Other tenders were issued with the approval of Superintending Engineers to keep them under the value' of Rs,20,000 to avoid inspection from Chief Engineer (MI)."
17. In their recommendations, the Board divided the officers involved in different categories in the following manner:
(a) Sardar Noor Alam Khan. Chairman AEB, Lahore.
"His major mistake was that without realising the consequences of his action, he distributed the funds to his Divisions and remained ignorant about the irregularities till the Contractors Association reported to him as such. His control was lax and his orientation was different. However, he did act when he became aware of the irregularities, but got no support from his senior subordinate staff.
This mitigates his inaction to some extent. It is therefore, recommended that he should be given Chairman's Severe Displeasure (Recordable) and should also be posted out of this appointment."
(b) "The following officers/officials are recommended to be removed from service under section 17(1-A) of the WAPDA Act, 1958 with immediate effect, without assigning any reason by giving them 30 days' pay in lieu of notice, as required under the law:--
(1) Mr. Muhammad Makhdoom Tariq Mufti, XEN.
(2) Mr. Shahid M. Akhtar, XEN.
(3) Khawaja Abdul Waheed, XEN.
(4) Mr. Zamir Hussain Bhatti, XEN.
(5) Mr. Amjad Hidayat Butt, XEN.
(6) Mr. Saeed Malik, B&AO.
(7) Mr. Muhammad Hanif, Divisional Accountant (with Mufti).
(8) Mr. Hamid Iqbal, Divisional Accountant (Street Light Divn.)
(9) Mr. Arshad Imran Butt, Divisional Accountant (Chunian).
(10) Mr. Jamil Bhatti, Divisional Accountant (with Zamir Bhatti).
(11) Mr. Abdul Latif Qureshi, Divisional Accountant.
(12) Mr. Salahuddin, Divisional Accountant (Shandara Division)." (c) "Action should be taken under (E & D) Rules against the following officers/officials:--
(1) Ch. Muhammad Rashid Khan, S.E.
(2) Mr. Mushtaq Ahmad, S.E.
(3) S. Iftikhar Ali Shah, Director (Accounts).
(4) Mr. Mazhar Nawaz Khan Khakwani, XEN.
(5) Mr. Abdul Ghaffar Khan, XEN.
(6) Mr. Salahuddin, XEN. (Gulberg Divn. and Shalimar Const. Divn.)
(7) Mr. Muhammad Saleem, XEN.
(8) Mr. Talat Mahmood, XEN.
(9) Mr. Ansar Haider, XEN. (Shalimar Const. Divn.)
(10) Mr. Asif Najib B&AO.
(11) Mr. Asghar Awan, B&A
(12) Mian Muhammad, B&AO
(13) Mr. Nazir Ahmad Khan, B&AO.
(14) Mr. Ismail Bhatti, B&AO.
(15) Mr. Abdul Qadeer Khan, Divisional Accountant
(16) Sh. Hafiz Ahmad, Divisional Accountant
(17) Mr. Muhammad Akram, Divisional Accountant
(18) Mr. Muhammad Younus Butt, Divisional Accountant"
(d) "The following officers may be served with a written warning:
(1) Mr. Anwar Herl, S.E.
(2) Mr. Abdul Sattar Akhtar, S.E.
(3) Mr. Asghar Ali Randhawa, S.E.
(e) "The remaining employees as mentioned in paras. 4, 6, 10 (Annex. A) of the inquiry report who are responsible for various lapses and acts of omission and commission may also be served with a written warning."
18. These recommendations of the Board were considered in the Authority's meeting on 8-1-1984 and the following decisions were made:-- "(a) Recommendations of the Board regarding officers in category (b) for action under section 17(1-A) of the Act may be approved.
(b) As for categories (a) and (d), instead of issuing "severe displeasure" (recordable) to Sardar Noor Alam and warnings in writing to three Superintending Engineers of paragraph (d), they should be suitably "admonished" through a personal letter from Chairman WAPDA. These officers, in the opinion of Member (Power), were professionally competent and men of integrity.
(c) About the officers in (e) above, it was recommended that they should for the present be kept under strict observation by the Competent Authority to watch their future conduct.
(d) As for category (c), the Authority desired "that the eighteen cases recommended for action under the Efficiency and Discipline Rules" be further examined by the Review Board with a view to taking out those officers/officials whose acts of omissions and commissions were not of very serious nature."
19. From this account it is abundantly clear that different treatment was given to various officers involved in the matter. In the first place, it was recommended by the Board that lenient view of the matter should be taken in respect of Sardar Noor Alam Khan (respondent No, 2) Chairman, Area Electricity Board. Then, whatever the Committee's report, the officers falling in other categories were recommended by the Board for a different action. Further, as we see, the Authority in turn approved the Board's recommendations only in respect of category (b) officers and about those falling in category (c) it was decided that the Board's recommendation for action under the Efficiency and Discipline Rules be examined afresh by them with a view to taking out those officers/officials whose acts of omissions and commissions were not of very serious nature.
Deviation was also made in the case of category (e) officers about whom it had been recommended by the Board that they should be warned in writing, in that the Authority decided that they should for the present be kept under strict "observation by the Competent Authority to watch their future conduct".
20. It appears from the record that all the officers in category (b), including the appellants were removed from service under section 17(1-A) of the Act, with the exception of M/s. Mr. Muhammad Hanif and Mr. Jamil Bhatti, Divisional Accountants who were in Government service. During the course of arguments, the appellants' learned counsel requested that the Tribunal should take judicial notice of the fact that the remaining five officers, namely M/s. Hamid Iqbal, Arshad Imran Butt, Abdul Latif Qureshi and Salahuddin came to the Tribunal with appeals under section 4 of the Act which have been accepted. Similar appeal filed Mr. Saeed Malik, Budget and Accounts Officer is, however, still awaiting decision.
21. It will be sufficient to make a reference only to the case of Abdul Latif Qureshi 1987 PLC (C.S.)
441, where the Tribunal refused to approve drastic action under section 17(1-A) of the Act under the circumstances of the case. It was found that he failed to check unnecessary and excess purchases of store materials made by the Executive Engineer without administrative approval and technical sanction. The Tribunal held that all purchases were made on the demand of Field Officers after obtaining non-availability certificate from the Competent Authority and no violation was committed by him. In this case, the Supreme Court refused leave to appeal to WAPDA (1987 SCMR 1348). may be mentioned that Mr. Qureshi had been working with Mr. Amjad Hidayat Butt while he was incharge of McLeod Road Division, Lahore.
22. Out of eighteen officers in category (c) there were six Executive Engineers, two Superintending Engineers, namely Ch. Muhammad Rashid Khan and Mr. Mushtaq Ahmed and ten officers who pertained to the account side. Since comparison is to be made regarding treatment given to the officers of the status of Executive Engineers, we will confine our notice to what happened to the six Executive Engineers in (c) category, leaving out the other twelve officers who were different in class.
23. Out of the Executive Engineers of (c) category, Mr. Muzaffar Nawaz Khakwani had been incharge of Rang Mahal Division and Garden Town Division during the period in question. The penalty awarded against him was that he was reduced four stages below in the time scale in respect of the irregularities in each of the two Divisions (order dated 11-12-1985 from the office of General Manager (Distribution). In the case of Abdul Ghaffar, Executive Engineer, only the punishment of censure was considered as adequate (order dated 30-10-1984 of the General Manager (Distribution). Mr. Salahuddin, Executive Engineer who had been incharge of Shalimar Construction Division and Gulberg Division, was awarded penalty of reduction by three stages below in the time scale for a period of two years for irregularities committed in each Division. The two penalties were ordered to run concurrently (order dated 11-12-1985) passed by General Manager (Distribution).
The penalty awarded against Muhammad Saleem, Executive Engineer was reduction in the time scale by two stages for a period of two years (order dated 6-12-1985) passed by the General Manager (Distribution). Likewise, Mr. Talat Mahmood, Executive Engineer was also reduced in the time scale by two stages for a period of two years by order dated 11-12-1985 passed by the General Manager (Distribution). The last in the category is Mr. Insar Hayder, Executive Engineer, incharge of Shalimar Construction Division at the relevant time, in whose case a warning in writing was considered sufficient, by order dated 26-2-1984 passed by Chief Engineer (Administration). It may be mentioned for facility of reference that these orders were placed on record during the course of arguments.
24. Detailed notice of the different nature of treatment given to other officers of the status of appellants will be complete only if advertence is made to certain other facts appearing from the record. We find it from the observations of the Review Board that generally speaking, the financial and administrative picture in Lahore Area Board was quite dismal. As we see from the summary of the report of the Inquiry Committee placed on the record by the respondents in Appeal No, 258(L)/86, the extent of total loss found to have been caused was Rs,90,62,862.59. The break up is immaterial and it would be enough to say that it was on account of excess amount paid for various items and purchase of obsolete, sub-standard and unnecessary material. It can also be noticed from the summary that there were eighteen Divisions in the Region with twenty-seven incumbents during the relevant period at different times. The recommendations made by the Board and a reference to proceedings of the Authority would bear out that out of these twenty-seven incumbents, five Executive Engineers, that is to say the appellants, in category (b) were removed from service and in category (c), as already notice before, six Executive Engineers were subjected to disciplinary proceedings resulting in lesser punishments.
25. This detailed analysis hardly leaves anything to be desired in pointing out and emphasising the fact that different treatment was meted out to officers of the category of appellants. Having thus taken stock of the nature of this treatment, all what is now required to be seen on the question of discrimination is as to what is the nature of allegations against the Executive Engineers of category
(c) and those against whom no action has been taken at all. Further what irregularities were found by the Committee in their report to have been committed by the Executive Engineers against whom no action was taken and those who were allowed to go with lesser punishments. The question of whether minor loss was caused by them will ordinarily be irrelevant and of no consequence, for what is material with reference to the gravity of punishment, is the nature of offence and not the quantum of loss resulting from it.
26. First we take the cases of six Executive Engineers falling in (c) category:
(a) Mr. Mazhar Nawaz Khakwani, was found to have purchased material at higher rates, and sub- standard material. He also resorted to splitting, made unnecessary purchases, purchased centralised items, and made purchases beyond his competence. He also made purchases without obtaining administrative approval and technical sanction (paras. 119-271 of Volume 2 of the inquiry report).
(b) Mr. Abdul Ghaffar Khan, Executive Engineer made purchases at higher rates. He also purchased sub-standard material and was also found involved in splitting (para. 92 volume 2).
(c) Mr. Salahuddin, Executive Engineer made purchases at higher rates, purchased sub-standard material, was found involved in splitting of the purchase orders, made unnecessary purchases, purchased centralised material, did not maintain proper record of work orders and purchased line T & P without administrative approval and technical sanction (paras.230 and 259 of volume 2).
(d) Mr. Muhammad Saleem Executive Engineer was found to have purchased items at higher rates, purchased sub-standard material, split the purchase orders and made unnecessary purchases of line T & P without administrative approval and technical sanction (para. 284 of the report volume 2).
(e) Mr. Talat Mahmood, Executive Engineer was found responsible for making purchases at higher rates, purchased sub-standard material, was also found involved in splitting the purchase orders, made unnecessary purchases and purchased line T & P without administrative approval and technical sanction (para. 284 volume 2).
(f) Mr. Insar Hayder, Executive Engineer was found to have purchased material at higher rates, sub- standard material, line T&P without administrative approval and technical sanction and was also found responsible for splitting (para. 249 volume 2).
It may be pointed out that the allegations of causing loss by purchasing material at higher rates, purchase of sub-standard material, unnecessary purchases, and splitting of orders were common in the case of the appellants and category (c) Executive Engineers. It is also a common factor that these irregularities caused loss to the Authority, irrespective of its quantum. This being so, it is extremely difficult to agree with the contention of the respondent's learned counsel that the classification was rational from the point of view of quantum of punishment.
26.We might as well address ourselves to the extent of loss attributed to the appellants and the Executive Engineers falling in (c) category and those against whom no action appears to have been taken. The relevant tabulated statement can be seen as part of the summary of the Inquiry Committee report placed by the respondents on the record. The losses attributed to the appellants are as follows:
(1) Mr. Amjad Hidayat Butti) Shahdara Divn.
(ii) Mcleod Road Divn.Rs. 7,69,721.90 Rs. 3,34,239.00 Rs. 11,03,960.90
(2) Mr. M.M. tariq Muftii) Civil lines Divn.Rs. 9,76,663.07
(3) Mr. Shahid M.
Akhtari) Street Light Divn. ii) Gulberg Const. Division.Rs. 3,86,452.03 Rs. 5,45,002.68 Rs. 9,31,454.71
(4) Mr. Zaamir Hussain BhattiIslampura Divn.Rs. 5,66,088.31
(5) Kh. Abdul WaheedChunian Divn.Rs. 2,99,671.50
29. Apart from these eleven Executive Engineers, there were sixteen others, shown in the same table with the summary of the report, who are alleged to have caused loss of lesser amounts from Rs,2,52,509.89 to Rs,11,431.00. It may be mentioned with advantage that the quantum of loss is irrelevant, if seen in the context of nature of allegations against each one of the officers concerned.
Be it as it may, Mr. Musthaq Ahmed, Superintending Engineer, 2nd Circle, Lahore is mentioned against serial No, 28 of the table as having been involved to the extent of Rs,6,40,894.20. There were other Superintending Engineers who were found to have connived at the Executive Engineers and approved their irregular purchases. Likewise, some of the officers of the accounts side responsible for pre-auditing of bills, failed in the performance of their duties, thus helping the Field Officers to continue with their irregular purchases.
30. What we see in the final analysis is that the Executive Engineers other than the appellants are still in service, irrespective of the commission of similar irregularities and causing monetary loss to the Authority. As instance, and only one is sufficient to bring out discrimination, we may quote the case of Muzaffar Nawaz Khakwani, the extent of whose involvement was Rs,9,02,754.58 and who is still in service. It should be pointed out here at this stage that the losses attributed to Zameer Hussain Bhatti and Kh. Abdul Waheed appellants were Rs,5,66,88.31 and Rs,2,99,671.50 respectively.
As already mentioned, Muzaffar Nawaz Khakwani is still in service whereas others were removed by the impugned orders. The argument on behalf of the respondent was that the guiding factor was the extent of loss caused by the officers concerned; which stands repelled by this analysis. It will also be a case in point that Mr. Mahmood Mohyuddin, Executive Engineer against serial No, 23 of the table caused loss of Rs,63,209 in respect of Fort and Badami Bagh Divisions. The loss attributed to C.D. Khokar at serial No, 18 in respect of the same Divisions for a different period was Rs, 1,10,027.
The amount of loss put up against the name of Mr. Mohsan Khan at serial No, 20 of the table for four Divisions was Rs,91,589.70. It was contended by the appellants' learned counsel that these three Executive Engineers had been promoted as Superintending Engineers, which was not refuted by the respondent's learned counsel. I am inclined to say that the argument of the appellants' learned counsel that the quantum of loss was immaterial in the presence of similar conduct of all the Executive Engineers, is not wholly without substance.
31. In view of that has been in the preceding paragraphs, it stands established beyond all reasonable doubt that different treatment was given to officers of same category with similar irregularities and regardless of the fact that everyone of them caused losses to the Authority in accordance with the inquiry report, which spells out a clear case of discrimination. In so far as my point of view goes, it is not possible to accept as valid, any law, rule, regulation or anything whatever, which is not uniform in its application. We do not have to go into the annals of settled law in search of a norm to establish that discrimination cuts at the very root of justice and annihilates it. In this view of the matter, it proves everything like malice and arbitrariness, the existence of which, according to the well-established principles of law, brings in its wake, the destruction of everything fair, just and honest. So great is the enormity of this unfair practice that, even standing alone in all its evil spirit, it is enough to prove mala fides of the kind, as would be sufficient to take away the legality of the impugned action and entitle an aggrieved person to relief. For these considerations, I feel inclined to hold that the orders of removal from service passed against the appellants under section 17(1-A) were arbitrary, mala fide and legally unsustainable.
32.During the course of his arguments, the appellants' learned counsel took great pains to establish that the extent of loss attributed to each of the appellants is not as large as it has been made to appear in the report. He said that total of loss of Rs,90,62,862.59 was in respect of all the eighteen Divisions of the Region which involved twenty-seven Executive Engineers at one time or the other. This apart, out of this amount, the loss attributed to payment of excess amounts comes to Rs,75,23,377.19. This would show that the remaining loss of Rs,15,39,485.40 was on account of obsolete, sub-standard and unnecessary material, and that the main irregularity was in respect of the payments made at higher rates. The argument at the Bar was that this artificial excess is due mainly to comparison of rates with the price bulletin. Another factor, it was contended, was comparison with market quotations. The appellants' learned counsel explained that the price bulletin was a restricted document and meant only for the use of Chief Engineer, Purchase Director and Director Accounts, with the result that the Executive Engineers had no excess to it for comparison of rates. It was pointed out that the committee picked up the lowest rates and ignored the highest rates of the same item in the same bulletin. Although the committee claims to have obtained rates from other regions for comparison, the learned counsel pointed out that no such statement is available from the inquiry report. About quotations from the market it was contended that they did not provide with a fair basis for comparison and no notice seems to have been taken of the fact that rates on credit basis are bound to be higher, as conceded in para. 2 at page 32 of Volume 1 of the inquiry report.
33. The other contention is that the assessment of loss made by the committee on account of payment on higher rates is unfair and exaggerated. I feel that it is not necessary to make a detailed application to the arguments of the appellant's learned counsel on this aspect of the matter. All it deserves is an observation that the nature of allegations against the appellants and others concerned was such, as would have necessitated an inquiry under the Efficiency and Discipline Rules in the interest of justice, where it would have been possible for them either to exonerate themselves or at least mitigate the rigour of the offence alleged to have been committed by them. The proceedings of the Inquiry Committee were evidently a one sided affair.
Only a questionnaire was issued for the appellants' pleadings, which they did submit for consideration. But the fact remains that they were never actually associated with the inquiry proceedings which could have not only given them an opportunity to defend themselves, but would also have enabled the Committee to make a fair and reasonable assessment of the extent of their involvement. It is in this context that the principle of audi alteram partem enunciated by the superior Courts becomes relevant. I am conscious of the fact that this principle is not available in a case where the guilt is palpably established. But here in the present case, as has already been seen, the conclusions arrived at by the Committee left much to be desired and the association of the appellants with their proceedings could well have brought about a different result.
34. A reference in this case may also be made to the Authority's instructions conveyed through office memorandum dated 17-4-1982 (Annex. A, Appeal No,117(R)/84), where it was laid down that summary powers under section 17(1-A) are to be exercised in respect of those employees against whom concrete evidence to achieve the desired result through proceedings under the Efficiency and Discipline Rules was not forthcoming, but there was tangible material leading to moral certainty of truth of allegations against the employees sought to be dealt with under the section. In the present case, as already noticed, evidence could be availble to establish the allegations against the appellants. I do realise that according to the Supreme Court Ruling in Sh. Abdul Hameed's case PLD 1988 SC 35, WAPDA does not stand denuded of its powers to act under section 17(1-A) by laying down instructions and guidelines for subordinate functionaries for taking action under this section. However, it is nevertheless worth its while to mention this aspect of the matter, under the circumstances of this case, at least to point out that the participation of the appellants in the inquiry proceedings would have enured for promotion of the ends of justice.
35. For these reasons, I am inclined to hold that discrimination in these cases is so prominent and outstanding, as to make the impugned orders unsound, arbitrary and legally unsustainable on the ground of malice in law. The impugned orders are, therefore, set aside in acceptance of the appeals, with the direction that the appellants shall be reinstated in service from the date of removal with all consequential benefits, except payment of salary of the period from that date to that of the announcement of this judgment, which shall be treated as of leave extraordinary without pay. Should the Authority decide to initiate proceedings under the Efficiency and Discipline Rules against them, which they will of course be at liberty to do, no order in that eventuality will be deemed to have been passed in respect of the salary of this period and the Authority may treat it in any manner in accordance with Rules. The costs shall not follow the event.
36.Parties to be informed.
KH. ABDUL JALIL (MEMBER).--While considering an appeal against an order under section 17(1-A) of the WAPDA Act, this Tribunal has to keep in view the following observation of the Supreme Court in the case reported as 1986 SCMR 18.
"The matters required to be examined in scrutinising the exercise of power under subsection (1-A) are (a) the competency of the individual or body taking action under it, (b) the amenability of the individual in respect of whom such a power has been exercised, (c) the presence of taint of mala fides or bias in exercise of that power, the postulate of legislative authorisation to the exercise of public power being that it will be exercised bona fide. It is only after satisfying such tests or requirements that power can be said to have been exercised in a manner to achieve irrevocability or immunity from further scrutiny or substitution."
It will also be of advantage to refer to the observation of the Supreme Court in the case reported as 1986 SCMR 571 regarding the nature of evidence required for taking action under section 17(1-A) of the WAPDA Act, 1958 which is in the following terms: "The language of the statute conferring power on the Authority under section 17(1-A) makes it a term and condition of the employment itself. It is not in the nature of punishment and is not to be preceded by a show-cause notice or by the conclusive proof of material taken against the employee. It is also not correct in view of the law laid down by this Court in Abdul Karim v. The West Pakistan PLD 1956 SC (Pak.) 298 that where two powers are concurrently available any one of them can be used notwithstanding that initially it was intended or action had been initiated under the other power. There is no question of the evidence being conclusive or beyond reasonable doubt before authorising the Authority to take action under section 17(1-A). The language of the statute is clear. It admits of no ambiguity. Like all statutory powers the limitation of its being bona fide and for the purposes of the Act has to be read in the power itself."
'We have, therefore, to see whether the allegations against each of the five appellants made by the inquiry team consisting of senior officers of respondent WAPDA provided adequate grounds to respondent WAPDA for taking action against five appellants under section 17(1-A) of the WAPDA Act, 1958. The financial irregularities for which each of the appellants has been held responsible by the inquiry team are reproduced below:
(1) Mr, Zameer Hussain Bhatti, appellant in Appeal No, 24(L)/84. As Executive Engineer, Islampura Division.
"(1) He made purchases at higher rates from few selected firms resulting in a loss of Rs,3,43,113.80 to WAPDA.
(2) He purchased substandard material worth Rs,1,58,980 which is a loss to WAPDA.
(3) He purchased PVC S/C Copper cable worth Rs,1,11,290.82 without authority and from non- manufacturers at higher rates resulting in loss of Rs,57,104.51 to WAPDA.
(4) He purchased 4 Electric Welding Plants for Rs,6,890 which were found of no use to WAPDA. It is a wasteful expenditure.
(5) He split the Purchase Orders to make maximum purchases at his level without reference to the higher authorities.
(6) He made unnecessary and excessive purchases which remained unutilised either in 'A' type store or with the Sub-Divisions/Line Superintendent. He thus misused his powers as he was not competent to make purchases for stock.
(7) He purchased line T&P worth Rs,4,40,116.66 without administrative approval and technical sanction.
(8) He purchased office furniture and equipment worth Rs,2,32,388.80 without administrative approval and technical sanction.
(9) He did not comply with the orders of his Superintending Engineer otherwise the irregularities committed by him could have been avoided."
2. Mr. M. Makhdoom Tariq, appellant in Appeal No, 260(L)/86. As Executive Engineer. Civil Line Division.
"(1) He purchased store and T&P through limited inquiry from few selected firms at higher rates resulting in a loss of Rs,5,04,189.75 to WAPDA.
(2) He purchased sub-standard material costing Rs,2,15,247.00 which is loss to WAPDA.
(3) He purchased obsolete material costing Rs,6,720 which is also a loss to WAPDA.
(4) He purchased PVC S/C Copper cable from non-manufacturers at high rate resulting in a loss of Rs,2,45,661.32 to WAPDA.
(5) He purchased fire extinguishers at high rates from firms not dealing in fire-fighting equipment.
As a result WAPDA sustained loss of Rs,4,845 on their purchases at high rates.
(6) He split the purchase orders in such a way that the amount of each purchase order remained within his competency i,e, below Rs,7,000 to make maximum purchases at his level.
(7) He made unnecessary and excessive purchases for the sake of purchases without regard to their requirement for immediate incorporation in works and without regard to his powers under section VI-B(ii) of WAPDA Financial Power which allowed purchases upto Rs,7,000 at a time for immediate incorporation in work. He thus misused his financial powers.
(8) He purchased line T&P costing Rs,5,08,283 without Administrative approval and technical sanction from the competent authority.
(9) He purchased office furniture costing Rs,1,66,519 without Administrative approval and technical sanction from the competent authority and without regard to the scale of furniture and equipment fixed by the Authority for the various categories of officers and staff. The furniture was purchased from non-manufacturers resulting in a loss of Rs,68,319 to WAPDA due to purchases at higher rates.
(10) He issued 11 Purchase Orders in excess of Rs,7,000 which were beyond his competency.
(11) He disregarded the orders of his Superintending Engineer in making local purchases which caused financial loss to WAPDA."
3. Mr. Amjad Hadayat Butt, appellant in Appeal No, 259(U/86. As Executive Engineer, Shandara Division.
"(1) He made purchases at higher rates resulting in a loss of Rs,5,67,364.85 to WAPDA. The purchases were neither made from the manufacturers or the stockists nor rates were ascertained from them.
(2) He purchased sub-standard material costing Rs,1,52,512 which is a loss to WAPDA.
(3) He purchased obsolete material costing Rs,25,301 causing a loss to WAPDA.
(4) He purchased PVC S/C Copper cable from non-manufacturers at higher rates resulting in a loss of Rs,18,894.05 to WAPDA.
(5) He purchased Fire Extinguishers from firms not dealing in fire-fighting equipment resulting in a loss of Rs,5,650 to WAPDA due to purchases at higher rates.
(6) He split the purchase orders to make maximum purchases at his level.
(7) He made unnecessary purchases for keeping in stock for which he had no power according to Section VI-B(ii) of WAPDA Financial Powers. He thus misused his powers given to him under Section VI-B(ii) of WAPDA Delegation of Financial Powers booklet.
(8) He purchased T&P costing Rs,5,12,570.50 without administrative approval and technical sanction.
(9) He purchased Office Furniture and Equipment costing Rs,4,76,913.34 without administrative approval and technical sanction and at higher rates from the non-manufacturers which caused a loss of Rs,1,98,825 to WAPDA.
(10) He disregarded the advice of Audit and was found indifferent to observing rules and regulations for making purchases though it was pointed out to him through two special audits."
As Executive Engineer, McLeod Road Division.
"(1) He made purchases of Stores and T&P at higher rates resulting in a loss of Rs,3,34,239.
(2) He made irregular and unnecessary purchases of 46 Nos, Steel Stock Racks for Rs,1,49,000 from non-manufacturers of furniture which resulted in a loss of Rs,1,14,975 to WAPDA.
(3) He split the Purchase Orders in order to make maximum purchases at his level.
(4) He issued 36 Purchase Orders beyond his competency of Rs,7,000 "At a time".
(5) He made unnecessary and excessive purchases of stores not for their immediate consumption in work, but for keeping in stock for which he was not competent.
(6) He purchased T&P for Rs,2,53,884 without administrative and technical sanction.
(7) He purchased furniture for Rs,3,16,766 without administrative approval and technical sanction from non-manufacturers of furniture resulting in loss of Rs,2,05,985 to WAPDA.
(8)A sum of Rs,39,905 was paid on 3 vouchers without pre-audit from Director Accounts."
As Executive Engineer McLeod Road Division during 1979-1980.
"WAPDA sustained a loss of Rs,2,40,051.35 on the running of D.G. Sets during the year 1979-80 as detailed below for which Mr. Amjad Hidayat Butt, XEN and Miran Bux, Foreman are responsible: Excess consumption of Diesel OilRs, 28,006.35 Idle running of D.G.
Sets for battery charging.Rs,1,92,045.00 Expenditure of mixing of Mobile Oil with Diesel oil.Rs, 20,000.00 Total: Rs,2,40,051.35
(1) He made purchases at higher rates resulting in a loss of Rs,2,29,657 to WAPDA.
(2) 8 Nos, Pipe Wrenches 36" were not found accounted for either in the Stock Measurement Book or on the stock card which means these were not received or were misappropriated. This is a loss to WAPDA amounting to Rs,4,850.00
(3) He split the purchases to make maximum purchases at his level.
(4) He made unnecessary purchases which necessitated transfer of stores costing Rs,3,83,660.20 to other Divisions and huge quantity costing Rs,1,78,497.93 is lying in 'A' Type Store.
(5) He purchased stores costing more than Rs,20,000 through limited inquiries and without getting the material inspected by the C.E. (M.I&S) in contravention of WAPDA Financial Power and WAPDA purchase procedure."
4. Kh. Abdul Waheed. appellant in Appeal No, 23(L) /84. As Executive Engineer, Chunian
(1) He was found responsible for loss of Rs,1,75,961.50 on account of purchases made at higher rates.
(2) WAPDA sustained a loss of Rs,2,135 due to purchase of Fire Extinguishers at higher rates.
(3) He was responsible for a loss of Rs,1,11,600 on account of purchase of sub-standard material.
(4) WAPDA sustained a loss of Rs,9,975 on account of purchase of J-Bolts 10" x 1/2" which are obsolete.
(5) He issued 53 Purchase Orders in excess of Rs,7,000 which were beyond his competency. .
(6) He split the purchase orders to make maximum purchases at his level.
(7) He made unnecessary and excessive purchases for keeping in stock and not for immediate incoproration in works. He thus misused his powers.
(8) He purchased Technical T & P worth Rs,1,80,421 without administrative approval and technical sanction.
(9) He purchased furniture worth Rs,2,23,589 without administrative approval and technical sanction and at higher rates resulting in a loss of Rs,33,185 to WAPDA."
5. Mr. Shahid M . Akhtar, appellant in Appeal No,258(L)./86. As Executive Engineer, Gulberg Construction Division.
"(1) Purchases were made at higher rates resulting in excess expenditure of Rs,4,45,388.91.
(2) Purchase of PVC S/Core Copper Cable from non-manufacturers and without any justification for its use except some small quantity in Street Light work. An excess expenditure of Rs,64,901.77 was incurred on its purchase at higher rate.
(3) He purchased furniture for Rs,1,04,290 from non-manufacturers of furniture at higher rates resulting in excess expenditure of Rs,70,378. He also purchased 3 Nos, Revolving Chairs for Rs,2,655 to which the Xen. was not entitled.
(4) He purchased sub-standard material costing Rs,34,712 which is a loss to WAPDA.
(5) He split the purchase orders to make maximum purchases at his level, without referring the cases to the higher authorities.
(6) He made unnecessary purchases for keeping in stock and not for immediate incorporation in works as required under WAPDA Financial Powers.
(7) He purchased centralised items without referring the case to the higher authority for making economical purchases for these items which are purchased in large quantity.
(8) He purchased 8 Nos, Drill Chuks for Rs,6,705 which are not required for consumption."
In support of its conclusions, the inquiry team has relied on documentary evidence which is available in three volumes of its report consisting of 305 pages besides a large number of annexures and appendices. I am thus convinced that the action taken by respondent WAPDA in removing the appellant from service under Section 17(1-A) of the WAPDA Act, 1958 rests on substantial material and is, therefore, bona fide.
38. The report of the inquiry team was examined by three officers of respondent WAPDA, namely, General Manager (Admn.), General Manager (Dev.) and General Manager, Finance (Power) and this Review Board recommended five appellants and 7 other officers for action under section 17(1- A) on account of their having committed very serious irregularities and being the chief motivator.
The learned counsel for respondents, during the hearing of the case, has pointed out the following serious irregularities alleged to have been committed by each of the appellants for justifying action against them under section 17(1-A) of the WAPDA Act:
1. Mr. Zameer Hussain Bhatti, appellant in Appeal No, 24(L)/84.
"He is distinguished from other officers because he disregarded the orders of the Superintending Engineer who ordered him not to make local purchases without his approval as heavy balances of store and T & P etc. were lying in M/Road Store. These orders were given in July, 1980, October, 1980 and September 1980. The rates paid by him were also objected to by the S.E. saying that they were on the higher side but he did not care for these orders and made purchases in the year 1980-81 and in the year 1981-82. Thus he encouraged others to disregard the codel formalities by disregarding the codel rules as well as the specific orders of the superiors. Hence he was removed from service because he committed major irregularities of disobedience of orders of his superiors and of inflicting loss to WAPDA by making purchases at higher rates."
2. Mr. M. Makhdoom Tariq appellant in appeal no 260(L): "He was also a pioneer for all these irregularities committed in Lahore Region. He did not obey his senior officers and continued making purchases in spite of instructions from his superior officers including the Chairman, AEB to stop making purchases, as discussed below:
(a) On 14-7-1980, S.E. 2nd Circle issued a letter bearing No, 9830-33/IP-7 to all his XENs: including XEN. C/Lines Divn. to obtain non-availability certificate from A type Store M/Road before making purchases because sufficient stores were lying in A Type Store but he did not care for these orders and did no obtain non-availability certificate from A type Store.
(b) Again the S.E. issued memo. No, 2473, dated 25-2-1981 to stop making purchases. But he did not stop.
(c) On 14-3-1981 he was again asked to stop making purchases and give explanation for making purchases in spite of orders, written and on phone. But he continued making purchases.
(d) He was again asked on 12-8-1981 to stop making purchases but he did not stop.
(e) Even after the expiry of the year 1981-82 he ordered purchases for Rs,4,75,312.70 in July, 1982 when even the budget allocation was neither intimated nor received by the Chairman, AEB, Lahore."
3. Mr. Amjad Hidayat Butt appellant in Appeal No, 259(L)/86.
"(a) Mr. Amjad Hidayat Butt was the Chief Motivator and a pioneer for all these irreglarities. He remained in M/Road Division from 1-7-1980 to 9-1-1981. He was XEN. of M./Road Divn. during the year 1979-80 also. As he was famous for committing irregularities, the Authority ordered special audit of the purchases made by him in the year 1979-80 which was carried out in August, 1980. During this special audit the irregularities of the nature committed by him in the year 1980-81 were pointed out.
It means this XEN. was fully aware of the irregularities which should not be committed during purchases but he did not care for the audit observations and made huge purchases for Rs,6,62,616.20 during the period from 1-7-1980 to 9-1-1981 in M/Road Divn.
(b) He was transferred to Shandara Divn. on 10-1-1981 where he remained upto 23-6-1982 and made huge purchases of Rs,18,17,662.94 committing the same irregularities which he committed during the year 1979-80, 1-7-1980 to 9-1-1981 in M/Road Divn. and now in Shandara Divn. A special audit was again ordered for reviewing the purchases made by him from January 1981 to March 1981. During this special audit again the same serious irregularities of splitting purchases without public tenders, non-inspection of material, purchases from non-qualified firms etc. were pointed out by audit. But he overruled the audit and continued committing the same irregularities till he was removed from service."
4. Kh. Abdul Waheed. appellant in Appeal No, 23(L)/84.
"Though the amount of his purchases is comparatively less but the purchases include office T&P which have been purchased for Rs,2,23,589. These items include stock racks which have been purchased at very high rates and the material used in them was of very inferior quality with the result that all these racks were found broken when the inquiry committee got them inspected in 1982. He purchased seven No, Fire extinguishers also which were not found in use i,e, unfilled on inspection. He was found absconding when the inquiry was taking place and his whereabouts were not available with the Chairman, AEB, Lahore. Thus he committed the irregularities of absconding from service and he did not answer the questionnaire issued by the Inquiry Committee."
5. Mr. Shahid M, Akhtar, appellant in Appeal No, 258(L)/86.
"The action under section 17(1-A) of WAPDA Act, for removal from service against Mr. Shahid M.
Akhtar was taken on the following serious nature of irregularities distinguishing him from the other officers against whom comparatively lenient view was taken:
(a) Mr. Shahid M. Akhtar remained XEN. in St. Light Divn. from 23-3-1981 to 6-12-1981. During this short period of about nine months he purchased store for Rs,11,01,446.06 which is very excessive as compared with the others.
(b) There was duplication in the maintenance work of the St. Light. The Operation Divisions were also maintaining St. Light as they were directly concerned with the consumers. On the other hand St. Light Division was also doing maintenance work. To avoid duplication in the work and to save expenditure the Chairman, AEB, Lahore issued letter No, 1100188/EP, dated 30-8-1981 ordering the Operation Division to do maintenance work and the St. Light Division was asked not to carry out the maintenance work. But Mr. Shahid M. Akhtar purchased maintenance material costing Rs,4,22,147 even after the issue of these orders. He thus violated the specific instructions of the Chairman, AEB, Lahore. As the maintenance work was no more his responsibility, material costing Rs,2,39,502.68 out of the total material of Rs,4,22,147 was transferred to other Divn. as it could not be utilised. It proves that he misused his power of emergency purchases with mala fide intention because the material was not used on the work by him.
(c) He purchased heat resistance wire costing Rs,58,805.50. Its use has nowhere been prescribed by WAPDA in St. Light. This wire has got no standard specification because it has not been specified by WAPDA. He paid exorbitant rates for this item. When questioned he stated that he used heat resistance wire as an experiment to stop damage of costly material such as chowk MV Lamp etc. He was not competent to make any experiment without referring the same to the higher authorities and in many cases the designed Dte: of WAPDA has to be consulted in such matters."
39. Thus in view of the above material the charge of unfair discrimination against the respondent falls to piece.
40. It was contended before us on behalf of the appellants that section 17(1-A) of the WAPDA Act is repugnant to the injunctions of Islam. This plea is not sustainable in view of the judgment of the Federal Shariat Court in the case reported as PLD 1983 FSC 70. The last plea of the appellants that the action taken against them is violative of the Authority's instructions dated 17-4-1982 is also without substance. As rightly observed by my learned brother, WAPDA does not stand denuded of its powers to act under section 17(1-A) by laying down instructions and guidelines for subordinate functionaries for taking action under this section. For this reason, this plea of the appellants is also repelled.
41.For the above reasons, I dismiss all the five appeals with no order as to costs.
SYED ALLY MADAD SHAH (CHAIRMAN).--All the five appellants M/s. Shahid M. Akhtar, Amjad Hidayat Butt, Muhammad Makhdoom Tariq, Khawaja Abdul Waheed. and Zamir Hussain Bhatti were engineers with the Water and Power Development Authority (hereinafter referred to as the WAPDA). They have been removed from service under separate orders passed on 12-1-1984, in exercise of powers conferred on the WAPDA under section 17(1-A) of the WAPDA Act, 1958, to retire or remove from its service any of its employees without assigning any reason after giving him not less than thirty days' notice or pay in lieu thereof. They have challenged those orders in these appeals. Appeals of the first three appellants (Nos, 74(R)/84, 75(R)/84 and 76(R)/84) were allowed by a Bench of this Tribunal by judgment dated 9-6-1984. The WAPDA preferred Civil Appeals Nos, 805, 806 and 808 of 1988 before the Supreme Court. The Appeals Nos, 117(R)/84 and 118(R)/84 by the other two appellants (M/s. Khawaja Abdul Waheed and Zamir Hussain Bhatti) were allowed by another Bench of this Tribunal by judgment dated 15-12-1984, following the decision in the aforesaid three appeals. The WAPDA filed Civil Petitions Nos, 176-R and 177-R of 1985 in the Supreme Court for Leave to Appeal. The Supreme Court, by its judgment dated 14-12-1985, allowed the three appeals and the two civil petitions for leave to Appeal and set aside the judgments of the Tribunal and remanded all the five appeals for their decision afresh in the light of the observations made in the judgment. All the five appeals have been heard afresh.
42. The facts, the appeals have arisen from, are recapitulated at paragraphs 14, 15, 16, 17 and 18 of the judgment initiated by Mr. Hasan Nawaz, Member. It may, however, be mentioned briefly that the appellants were serving as Executive Engineers, WAPDA at different stations in Lahore Region during the years 1981, 1982 and 1983. During the course of audit of their accounts, several irregularities in incurring expenditure amounting to misuse of official powers, etc were allegedly noticed. A High- powered Inquiry Committee comprising the Chief Engineer (P.I.I.), the Director (Surveillance) and the Deputy Chief Auditor, Lahore Region, was constituted in October, 1982 to probe into the matter.
The Committee submitted its report somewhere in September, 1983. The report revealed involvement of 75 officers of different ranks in huge purchases by the Executive Engineers in excess of their actual requirement purchases made from bogus firms at higher rates without inviting tenders etc. causing loss to the WAPDA to the tune of Rs, 90,62,862.59. The report was examined by a Review Board comprising the General Manager (Admn.), General Manager (Distribution) and General Manager Finance (Power). The Review Board agreed with the report of the Inquiry Committee and recommended departmental action against the officers involved in the alleged scandal. The Review Board placed those officers in five categories:
(a) Chairman, Area Electricity Board, Lahore (Sardar Nur Alam Khan): He was held responsible for having distributed funds to his Divisions indiscreetely and did not keep watch over the expenditure.
It was recommended that he should be given Chairman's "Severe displeasure" (recordable) and should be shifted from that assignment.
(b) Twelve officers, named below, were recommended to be removed from service under section 17(1-A) of the WAPDA Act, 1958 with immediate effect, without assigning any reason, by giving them thirty days' pay in lieu of notice as required by law:
(1) Mr. Muhammad Makhdoom Tariq Mufti, XEN.
(2) Mr. Shahid M. Akhtar, XEN.
(3) Khawaja Abdul Waheed, XEN.
(4) Mr. Zamir Hussain Bhatti, XEN.
(5) Mr. Amjad Hidayat Butt, XEN.
(6) Mr. Saeed Malik, B&AO.
(7) Mr. Muhammad Hanif, Divisional Accountant.
(8) Mr. Hamid Iqbal, Divisional Accountant.
(9) Mr. Arshad Imran Butt, Divisional Accountant.
(10) Mr. Jamil Bhatti, Divisional Accountant.
(11) Mr. Abdul Latif Qureshi, Divisional Accountant.
(12) Mr. Salahuddin, Divisional Accountant.
(c) Action under (E&D) Rules was recommended to be taken against the following 18 officers/officials:
(1) Ch. Muhammad Rashid Khan, S.E.
(2) Mr. Mushtaq Ahmad, S.E.
(3) S. Iftikhar Ali Shah, Director (Accounts).
(4) Mr. Mazhar Nawaz Khan Khakwani, XEN.
(5) Mr. Abdul Ghaffar Khan, XEN.
(6) Mr. Salahuddin, XEN.
(7) Mr. Muhammad Saleem, XEN.
(8) Mr. Talat Mahmood, XEN.
(9) Mr. Ansar Haider, XEN.
(10) Mr. Asif Najib, B&AO.
(11) Mr. Asghar Awan, B&AO.
(12) Mian Muhammad, B&AO.
(13) Mr. Nazir Ahmad Khan, B&AO.
(14) Mr. Ismail Bhatti, B&AO.
(15) Mr. Abdul Qadeer Khan, Divisional Accountant.
(16) Sh. Hafiz Ahmad, Divisional Accountant.
(17) Mr. Muhammad Akram, Divisional Accountant.
(18) Mr. Muhammad Younus Butt, Divisional Accountant.
(d) Following senior officers were to be administered written warning: (1)Mr. Anwar Herl, S.E.
(2)Mr. Abdul Sattar Akhtar, S.E.
(3)Mr. Asghar Ali Randhawa, S.E.
(e) Remaining employees named at paras. 4, 6 and 10 (Annexure A to the Inquiry report) held responsible for various lapses and acts of omission and commission, were to be administered written warning.
The recommendations of the Board were considered at a meeting of the Authority held on 8-1- 1984. The Authority took following decisions:--
(a) Recommendations of the Review Board as at para (b) were approved.
(b) As regards the recommendations of the Board at paras. (a) and (d) above, it was decided that instead of issuing "severe displeasure" (recordable) to Sardar Nur Alam Khan and written warnings to the three S.Es., those officers should be suitably admonished through a personal letter from the Chairman, WAPDA, as they were, in the opinion of the Member (Power) professionally competent and men of integrity.
(c) The employees mentioned at paragraph (e) above were to be kept under strict observation by the competent authorities to watch their future conduct.
(d) The cases of the 18 officers mentioned at para. (c) above, recommended for action under E&D Rules be further examined by the Review Board with a view to taking out those officers/officials whose acts of omission and commission were not of very serious nature.
Pursuant to the aforesaid decision of the Authority, 12 officers mentioned at para. (b) of the recommendations of the Review Board were removed from service under section 17(1-A) of the WAPDA Act, 1958, without assigning any reason. The five appellants herein were amongst them.
43. The decision of a Bench of this Tribunal in Appeals Nos, 74(R)/84, 75(R)/84 and 76(R)/84 vide judgment dated 9-6-1984 was summarised by the Supreme Court in its judgment dated 14-12-1985 as under:-- "The Tribunal, in the said cases, based its decision mainly on the hypothesis that the cases of all the persons who were scrutinised by the Enquiry Committee stood on the same footing and that WAPDA was guilty of according different treatment to the different officers who were all involved in the alleged misconduct and that it had, thereby, been guilty of unfair discrimination. Hence, its order, in so far as the three respondents are concerned, was arbitrary and mala fide."
The observations of the Supreme Court on the findings of the Tribunal are reproduced below:-- "We regret that we cannot subscribe to this approach of the Tribunal.. No basis was laid by it for asserting that the cases of all the officers, whose conduct was being inquired into by the Enquiry Committee, were identical. Unless the identity of interest and conduct of all the officers is established, the mere fact that a particular kind of action has been recommended against some of them and another type of action recommended against others, cannot make the action ordered as unjustified discrimination. So far as the order being mala fide is concerned, this Court has recently ruled in the case of Fauji Foundation and another v. Shamimur Rehman PLD 1983 SC 457 at page 567 that mala fides has to he specifically pleaded and legal proof adduced to establish it and no finding of mala fides can be recorded merely on the basis of surmises, assumptions, assertions and bare allegations. The essential requirements for establishing mala fides were singularly lacking and had clearly not been established by the respondents in Civil Appeals Nos,805, 806 and 808 of 1984."
The Supreme Court, considering the submission of Mr. Abid Hassan Minto, Advocate for the respondents before the Supreme Court and appellants herein, that a large number of other issues had been raised in the appeals before the Tribunal, but the Tribunal had not adverted to them while holding that the action taken against the appellants before the Tribunal was vitiated on account of arbitrariness and mala fides and, therefore, they were entitled to get their orders of retirement set aside on the basis of those other pleas raised in appeal, not decided by the Tribunal, made the following order:-- "We have gone through the memorandum of appeals submitted by the respondents and agree that there were other pleas raised by them which needed consideration and have not been decided. In these circumstances, the orders of the Service Tribunal dated 9-6-1984 in Civil Appeals Nos,805, 806 and 808 of 1984 are set aside and these cases remanded back to the Service Tribunal, for decision of these appeals afresh in the light of the other pleas raised by them."
44. The Appeals Nos, 117(R)/84 and 118(R)/84 by M/s. Khawaja Abdul Waheed and Zamir Hussain Bhatti were allowed by another Bench of this Tribunal by judgment dated 15-12-1984 on the basis of the judgment in the appeals by the other appellants herein, with the following observations:-- "Even if we do not agree with all the reasonings given by a Bench of this Tribunal in the judgment dated 9-6-1984, we are unable to make a discrimination, specially when the arguments given by the Bench in the other cases carry considerable weight. In these circumstances, we have no other choice but to dispose these two appeals also in the same manner in which the appeals of the other three engineers have been disposed of."
45. The Supreme Court made following observations in respect of those appeals which were before the Supreme Court in the form of Civil Petitions Nos,176-R and 177-R of 1985:--
46. "Since the orders of the Service Tribunal, which have been challenged in Civil Petitions Nos,176-R and 177-R of 1985, are based on the decision of the Tribunal taken earlier on 9-6-1984, the said orders must also necessarily be set aside."
We have heard Raja Muhammad Anwar, learned counsel for the respondents (in Civil Petitions Nos,176-R and 177-R of 1985) in detail in support of the case of the respondents at the leave stage, but he has not been able to persuade us that the decision in case of his clients is not based on the orders of the Service Tribunal dated 9-6-1984, even though the pleas of his clients may be somewhat different from those of the respondents in Civil Appeals Nos, 805, 806 and 808 of 1984."
Consequently, we would convert these petitions into appeals and set aside the order of the Service Tribunal dated 15-12-1984 and remand these cases also to the Service Tribunal for decision afresh."
46.It would appear that the decision by a Bench of this Tribunal in Appeals Nos, 74(R)/84, 75(R)/84 and 76(R)/84, that the action by the WAPDA against the appellants therein was arbitrary and mala fide was not upheld and was rather set aside by the Supreme Court and the appeals were remanded for their decision on other grounds raised in the appeals. Similar was the position of the Appeals Nos, 117(R)/84 and 118(R)/84. However, the learned counsel for the appellants have agitated that the grounds of mala fides, arbitrariness and discrimination also have to be considered by the Tribunal on rehearing of the appeals. They have laid much stress on this proposition on the basis of the orders of the Supreme Court dated 30-6-1986 and 23-11-1986 on the appeals preferred by the appellants against the orders of this Tribunal on their applications that they may be permitted to agitate the grounds of mala fide and discrimination etc. at the rehearing of the appeals. The observations by the Supreme Court are that the Tribunal would not be debarred from taking note of the facts placed by the appellants showing that the action against them was actuated by mala fides.
47. At the rehearing of the appeals, the learned counsel for the appellants laid much stress on the ground of discrimination in awarding of the punishment on the appellants vis-a-vis their colleagues accused of almost the same allegations. They made reference to some of the findings of the Inquiry Committee and made pointation of the comparative involvement of each of the Executive Engineers held liable for excessive purchases and violation of the rules and regulations in making the purchases etc. The learned counsel for the appellants M/s. Shahid M. Akhtar, Amjad Hidayat Butt, and Muhammad Makhdoom Tariq attempted to show by means of a chart that the allegations against the appellants were of the same nature as were levelled against the other Executive Engineers who were not removed from service and were awarded lesser punishments.
The analysis put forth by the learned counsel for the appellants has been highlighted in great detail by the learned Member Mr. Hasan Nawaz in the judgment proposed by him. The distinction in the two sets of the Executive Engineers treated differently in awarding of the punishment pointed out by the learned counsel for the respondents has been highlighted by the other learned Member Mr. Khawaja Abdul Jalil in the judgment proposed by him.
48. Action against the appellants was taken on the basis of a report of a three-Member Inquiry Committee, comprising Senior Officers, namely Mr. Mirza Hussain Ali, Chief Engineer, (PII), Lt Col. (Retd.) Yousaf All Malik, Director (Surveillance), Office of the Chief Engineer (MI&S), and Mr. Q.H.
Chishti, Deputy Chief Auditor, into the purchases of cent ralised and decentralised store materials, tools and plants, spare parts and office furniture etc. made by the field officers in Lahore Region during the financial years 1980-81 and 1981-82. The Committee seems to have conducted thorough inquiry and it submitted almost a comprehensive report. The Committee's report gives detailed particulars of the purchases in each Division/Unit made and the mode adopted therefor and the funds involved and the excesses and misuse of powers detected. The relevant features of the inquiry report are outlined in the judgment proposed by Mr. Hasan Nawaz, Member. The report of the Inquiry Committee was examined by the Review Board which comprised three General Managers, Administration, Distribution and Power. As many as 75 officers/officials were involved in the alleged scandal. The Review Board placed them in five categories taking into consideration their involvement in causing loss to the Authority to the extent of nearly one crore of rupees. The officers/officials found involved were Superintending Engineers, Executive Engineers, Divisional Accountants and Budget and Audit Officers etc. The main role in the purchases was played by the Executive Engineers who were ten in number. Five of them, who are the appellants herein, were removed from service in exercise of powers under section 17(1-A) of the WAPDA Act, 1958, and the remaining five were proceeded against under the Efficiency and Discipline Rules. The main thrust of the arguments of the learned counsel for the appellants was against this situation, making grievance that the second set of the Executive Engineers were equally responsible for the alleged loss caused to the Authority and there was no obvious reason for making distinction in awarding different punishments on the two sets of the officers and it was a case of clear discrimination between the two sets of the officers of the same rank carrying the same responsibility.
49. Determination of the question whether there was discrimination in awarding punishment on the officers of the same class, all allegedly involved in squandering and embezzling huge funds, rests on various factors, viz. gravity of the alleged mischief, modus operandi employed, antecedents of the miscreants and repentance etc. In the instant cases, the losses attributed to the appellants and their counterparts detected by the Inquiry Committee stand magnified in the inquiry report as under:-- 1st category (removed from service under section 17(1-A) of the WAPDA Act).
(1) Shahid M. Akhtar Appeal No, 74(R)/84).Rs, 9,31,454.71
(2) Amjad Hidayat Butt (Appeal No, 75(R)/84).Rs,11,03,960.90
(3) Muhammad Makhdoom Tariq (Appeal No, 76(R)/84).Rs, 9,76,663.07
(4) Khawaja Abdul Waheed (Appeal No, 117(R)/84).Rs, 2,99,671.50
(5) Zamir Hussain Bhatti (Appeal No, 118(R)/84).Rs, 5,66,088.31 2nd Category: (proceeded against under the Efficiency and Discipline Rules):
(1) Mazhar Nawaz Khakwani.Rs, 9,02,754.58
(2) Salahuddin. Rs, 5,38,766.07
(3) Muhammad Saleem.Rs, 4,92,121.15
(4) Talat Mahmood. Rs, 4,63,086.89
(5) Ansar Haider. Rs, 3,52,459.20
(6) Abdul Ghaffar Mian.Rs, 1,10,950.30 It would appear on comparative appraisal that the losses attributed to Shahid M. Akhtar, Amjad Hidayat Butt and Muhammad Makhdoom Tariq, appellants, and Mazhar Nawaz Khakwani, who was spared from action under section 17(1-A), were at high altitude, while those attributed to Khawaja Abdul Waheed and Zamir Hussain Bhatti appellants, and Salahuddin, Muhammad Saleem, Talat Mahmood and Ansar Haider, who were proceeded against under the Efficiency and Discipline Rules, were at the mid level, and those attributed to Abdul Ghaffar Mian were at low level.
According to me, the quantum of losses was a material factor for determining the gravity of mischief. It was on this account that the losses attributed to Mazhar Nawaz Khakwani were repeatedly pin pointed by the learned counsel for the appellants as a case of discrimination against the appellants in making selection for awarding punishment. It would be discussed hereinafter whether there was any justification for making distinction in awarding different punishment to the three appellants Shahid M. Akhtar, Amjad Hidayat Butt and Muhammad Makhdoom Tariq on one hand, and Mazhar Nawaz Khakwani, on the other hand. Likewise, the cases of Khawaja Abdul Waheed and Zamir Hussain Bhatti have to be compared with the cases of Salahuddin, Muhammad Saleem, Talat Mahmood and Ansar Haider as regards the losses attributed to them. Of course, the losses attributed to Abdul Ghaffar Mian of Rs,1,10,950.30 were at such a lower level that it could not be agitated as a ground of localising discrimination against the appellants. As regards the modus operandi employed in incurring the expenditure, the officers in both the categories are alleged to have made huge purchases in flagrant violation of rules and regulations in that respect and, therefore, liability of each one of them on that score stands on one platform. The Review Board adopted following criteria in categorising the officers for taking action:- -
(i) Those who had committed very serious irregularities and had been chief motivators and had caused maximum loss to the Authority were recommended to be removed from service under section 17(1-A) of the WAPDA Act, 1958.
(ii) Those who had caused lesser financial loss to the Authority but were equally guilty in committing the irregularities were recommended to be dealt with under the Efficiency and Discipline Rules.
(iii)Those who, according to the assessm ent of the Members of the Review Board, had not acted with mala fide intention and had caused lesser loss to the Authority were recommended to be served with written warnings.
The criteria adopted by the Review Board appears to be quite rational as the action was proposed on the basis of the magnitude of the losses caused to the Authority and the motivation behind it.
However, it has to be seen what yardstick was applied in classifying the appellants in category (i) and the other officers of the same rank, mentioned above, in category (ii). The entire thrust of the argument of the learned counsel for the appellants was directed against this aspect of the case. It appears from the analysis of the inquiry report that the losses attributed to the three appellants Shahid M. Akhtar, Amjad Hidayat Butt and Muhammad Makhdoom Tariq were at higher pitch and that was also the case in respect of Mazhar Nawaz Khakwani who was proposed to be proceeded against under the Efficiency and Discipline Rules. The losses attributed to Mazhar Nawaz Khakwani were nearly of the figures of losses caused by the appellants Shahid M. Akhtar, Amjad Hidayat Butt and Muhammad Makhdoom Tariq and much more than the losses attributed to the appellants Khawaja Abdul Waheed and Zamir Hussain Bhatti. The inquiry report furnishes the following distinguishing circumstances in respect of the appellants and Mazhar Nawaz Khakwani: SHAHID M. AKHTAR: He was Executive Engineer, Street Light Division, Lahore from 23-3-1981 to 6-12-1981 and he made total purchases of Rs,11,01,446.06. This has reference to the facts stated in the inquiry report (Vol. II) at pages 83 to 88. It further appears from report at pages 251 to 256 (Vol. II) that the appellant Shahid Akhtar remained Executive Engineer, Gulberg Construction Division, Lahore from 6-12-1981 to 30-6-1982 and he made total purchases of Rs,16,87,127.50. As per inquiry report, this appellant was not able to furnish explanation for the purchases made in violation of the rules and regulations.
AMJAD HIDAYAT BUTT:
(a) He was Executive Engineer, McLeod Road Division in 1979-80. He made total purchases of Rs,8,93,190.20; and caused loss of Rs,2,34,507 (Inquiry report Vol. II page 312).
(b) He also caused loss of Rs,2,40,051.35 on maintenance of diesel generating sets in the year 1979-
80. (Inquiry report Vol. II, page 306).
(c) He was Executive Engineer, Shandara Division from 10-1-1981 to 30-6-1982. He made total purchases of Rs,18,17,662.94 and caused the loss of Rs,11,03,965.90. The observations of the Inquiry Committee on disregard of rules and regulations by him are as under (Inquiry report Vol. II, Page 56); "Mr. Butt before his transfer to Shandara Division was XEN. McLeod Road Division where also he made excessive purchases in the years 197980 and 1980-81. Special audit of the purchases made by him in the year 1979-80 was carried out in August, 1980 in which the irregularities now pointed out such as splitting purchases without sanction etc. were pointed out by Audit. While he was posted as XEN. Shandara Division another special audit was carried out of the purchases made by him in the first three months of his posting i,e, from January, 1981 to March 1981. This audit again pointed out some irregularities i,e, purchases without public tenders, non-inspection of material, purchases from non pre-qualified firms etc. as were pointed out in the case of purchases made by him in McLeod Road Division. But he did not avoid committing these irregularities and repeated them in the purchases made by him from April 1981 onwards. Mr. Butt overruled the audit. He had no regard of rules and procedure and was bent upon making purchases at all costs. He was encouraged in his activities by his S.Es. i,e, S.E. IInd Circle and 1st Circle who regularised his purchases without even calling for his explanations and without regard to their own powers and without observing rules and regulations as discussed in the report of S.E. 1st and 2nd Circles."
MUHAMMAD MAKHDOOM TARIQ: He was Executive Engineer, Civil Lines Division from 1-7-1980 to 30-6-1982. He made total purchases of Rs,21,05,524.75. He too disregarded the orders of the S.E. as outlined in the inquiry report at page 169, reproduced below:-- "It proves that XEN. bypassed his S.E. and made the purchases without his approval through splitting. The Enquiry Committee has not admitted such notes submitted by the XEN. for his defence."
KHAWAJA ABDUL WAHEED: He was Executive Engineer, Chunian Division from 1-7-1980 to 13-5-1981. He made total purchases of Rs,6,95,620 and caused loss of Rs,2,99,671.50 to the Authority. He did not appear before the Inquiry Committee and is alleged to have absconded.
ZAMIR HUSSAIN BHATTI: He was Executive Engineer, Islampura Division. He made total purchases of Rs,12,54,706.68 and caused loss of Rs,5,66,088.31. The inquiry report Vol. II reveals at page 189 that he disregarded the orders of the S.E. on three occasions in the following manner:-- "(a) The S.E., 2nd Circle had given orders to all XENs. of his Circle with his Memo. No, 9830-33/IP-7, dated 14-7-1980 (Annexure 'H') that in future they should obtain non-availability certificate from the Regional Store Shalamar and 'A' Type Stores under the Administrative control of the Circle. But Mr. Bhatti did not obtain any non-availability certificate from the 'A' type Stores of 2nd Circle such as 'A' type Store McLeod Road where heavy balances of Stores and T&P like welding plants, nuts and bolts, etc., were lying. He thus flouted the orders of the S.E. resulting in unnecessary purchases of stores which were already available in 'A' type Stores.
(b) The S.E., 2nd Circle had objected to the rates mentioned in 30 P.Os issued by the XEN. in his Memo. No, 13346/IP-7, dated 15-10-1980 (Annexure 'I') and advised him to give a certificate to the effect that the XEN. has personally ascertained the genuineness of the rates from three recognised manufacturers/dealers and found the issue rate of P.O. as genuine and reasonable and it would be his personal responsibility. This action was to be taken in respect of all materials the rates of which were available in price Bulletin or not. Mr. Bhatti did not carry out this exercise resulting in payment of higher rates and loss to WAPDA.
(c) The S.E. 2nd Circle further observed on receipt of 25 P.Os. from the XEN. with his Memo. No, even dated 6-9-1980 (Annexure 'K') that the rates given in the P.Os. were on the higher side and advised that the rates should not be more than Price Bulletin rates. He also directed him to intimate that the estimates for purchase of T&P and line hardware were prepared and sanctioned by the competent authority or not. But no action was taken on that. Had he taken action on the directions of the S.E. all the above irregularities could have been avoided. The S.E. had informed well in time in early months of 1980-81. But the irregularities continued not only in 1980-81 but also in 1981-82".
MAZHAR NAWAZ KHAKWANI: He was Executive Engineer, Rang Mahal Division from 17-7-1980 to 6-12-1981. He made total purchases of Rs,8,15,164.50. The general allegations against him and the other Executive Engineers were that he had made purchases of stores either on higher rates or from non-approved firms and made purchases beyond his financial powers and made splitting of orders in some purchases etc. The Inquiry Committee did not hold him liable of disregard of any orders of his superiors etc.
50. As regards the other Executive Engineers, namely Salahuddin, Muhammad Saleem, Talat Mahmood, Ansar Haider and Abdul Ghaffar Mian, they were, of course, found guilty of violations of rules and regulations in making purchases of stores, but there is no mention that they had disregarded the orders of their superior officers.
50-A. Evidently, only those Executive Engineers (the appellants) who had flagrantly disregarded the orders of their officers, and Khawaja Abdul Waheed, who had absconded during the course of the inquiry proceedings, were removed from service under section 17(1-A) of the WAPDA Act, 1958; while the other Executive Engineers were recommended to be proceeded against under the Efficiency and Discipline Rules. Of course, they too could have been removed from service under section 17(1- A) like the appellants, but the WAPDA seems to have exercised much restraint in punishing the miscreants and took action under section 17(1-A) of the WAPDA Act against only those who were guilty of gross disregard of the rules and regulations in making purchases and ignoring orders of their superiors; and segregated the other employees according to the nature of their overall involvement in causing losses to the Authority. The distinction so made by the Authority was not unjustified and there was no discrimination in segregating the appellants for their removal from service under Section 17(1-A) of the WAPDA Act, 1958.
51. The appellants have also alleged mala fides, a ground oftenly advanced. The Supreme Court has held in several cases that the ground of mala fides cannot succeed merely on the basis of surmises, assertions and bare allegations but it has to be specifically pleaded and legal proof adduced to establish it. The enlightening authorities on this proposition are the cases of Government of West Pakistan v. Agha Abdul Karim Shorash Kashmiri PLD 1%9 SC 14; Federation of Pakistan v. Saeed Ahmad Khan PLD 1974 SC 151; and Fouji Foundation and another v. Shamimur Rehman PLD 1983 SC 457. In the instant cases, it was observed by the Supreme Court in the judgment dated 14-12-1985 in Appeals Nos, 74(R)/84; 75(R)/84 and 76(R)/84, that the essential requirements for establishing mala fides were singularly lacking and had not been clearly established in the Civil Appeals Nos, 805, 806 and 808-R of 1985, filed before the Supreme Court by the appellants Shahid M. Akhtar, Amjad Hidayat Butt and Muhammad Makhdoom Tariq. These observations extended also to the Civil Petitions for Leave to Appeals Nos, 176-R and 177-R of 1985 filed by the appellants Khawaja Abdul Waheed and Zamir Hussain Bhatti. The appeals were remanded by the Supreme Court for their decision on the grounds other than that of the mala fides. Nevertheless, the counsel for the appellants urged that they may be permitted to advance grounds to substantiate the allegations of mala fides. As mentioned above, their applications to that effect were dismissed by the Tribunal and their appeals before the Supreme Court against those orders too were dismissed, of course, with the observations that the Tribunal would not be debarred from taking note of the facts placed by the appellants showing that the action against them was actuated by mala fides. There is hardly any substantial ground to prove mala fides. The main ground repeated at the hearing was that of discrimination in categorisation of the officers for awarding punishment and that aspect of the case has been dealt with above and conclusion arrived at that there was no discrimination. The term `mala fides' stands magnified in the case of Federation of Pakistan v. Saeed Ahmad Khan PLD 1974 SC 151 referred to above, as under:-- "Mala fides literally means "in bad faith". Action taken in bad faith is usually action taken maliciously in fact, that is to say, in which the person taking the action does so out of personal motives either to hurt the person against whom the action is taken or to benefit oneself. Action taken in colourable exercise of powers, that is to say, for collateral purposes not authorised by the law under which the action is taken or action taken in fraud of the law are also mala fides. It is necessary, therefore, for a person alleging that an action has been taken mala fide to show that the person responsible for taking the action has been motivated by any one of the considerations mentioned above."
In the instant cases, the action against the appellants was taken on probe into the complaints that there had been gross abuse of exercise of financail powers by the WAPDA officers in Lahore Region.
Firstly, there was audit of the accounts throughout the Region. Thereafter, a Committee consisting of three senior officers was constituted to probe into the misuse of powers and squandering of the funds. The Committee made thorough inquiry and detected several irregularities and misuse of powers throughout the Region and found 75, out of 87 officers, involved in the scandal. The report of the Inquiry Committee was reviewed by a Board of three very senior officers of the Authority. The action was taken after such thorough probe into the matter. The allegations of mala fides behind an action taken after such thorough probe appears to be a malicious attempt on the part of the appellants to escape action taken against them.
52. The appellants have also contended that the action against them under section 17(1-A) of the WAPDA Act was in violation of the rules/instructions issued by the WAPDA to its officers that wherever there was material for taking proceedings under the Efficiency and Discipline Ruls, action under section 17(1-A) of the WAPDA Act need not be resorted to, and the action taken against them was in violation of those instructions and it tantamounted to mala fide exercise of powers. Of course, the Authority had issued such instructions, which fact indicates that the officers were impressed upon to exercise care and caution in taking severe action against the subordinates. In the instant cases, abundant care and caution were adopted inasmuch as thorough inquiry was held and the concerned officers were given opportunity to explain the irregularities and the inquiry report was reviewed by three members of the Authority and action under section 17(1-A) of the WAPDA Act was taken thereafter and that too against only those officers who were guilty of gross- misconduct, as discussed above, and the rest were proceeded against under the Efficiency and Discipline Rules etc. A grievance was also made at the hearing that some of the officers of the class of the appellants, who were recommended for action under Efficiency and Discipline Rules, were awarded lenient punishment and some of them were even rewarded with promotions. But that was a subsequent development and each case rust have been dealt with on its own merits and demerits, and even if any leniency was extended in any case, the appellants met misfortune having emanated from their own misdeeds.
53. The learned counsel for the appellants also urged at the hearing that the action against the appellants under Section 17(1-A) of the WAPDA Act, without show-cause notice, was against the injunctions of Islam and they placed reliance on the decision of the Shariat Appellate Bench of the Supreme Court in the case of Pakistan and others v. Public-at Large and others, reported in PLD 1987 SC 304. The decision by the Shariat Appellate Bench was on the provisions of section 13(ii) of the Civil Servants Act, 1973, which provided that a civil servant could be retired after having completed qualifying service of twenty-five years. In the instant cases, the appellants did have notice of the proceedings that were taken against them. They were associated in the inquiry and they were not taken by surprise. In my opinion, that ground is not available to them.
54. The learned counsel for the appellants Shahid M. Akhtar, Amjad Hidayat Butt and Muhammad Makhdoom Tariq took pains to present the case that the appellants had not violated any rules and regulations in making the purchases of the stores and he made reference to some regulations and instructions as well as to the Price Bulletins etc. The exercise made by him could at the most find justification for purchases of few items here and there and not in respect of all the items involving lacs of rupees. Herein, the question to be determined is whether there was sufficient evidence before the Authority for taking action against the appellants in exercise of powers under section 17(1-A) of the WAPDA Act, 1958. The inquiry report does furnish sufficient evidence that there was actionable bungling in the purchases of the stores by the appellants and others and, therefore, the exercise of examination of each item of irregular purchases detected by the Inquiry Committee would not be called for.
55. The appellants have also agitated that they were condemned unheard. It has been discussed above that the appellants were associated in the inquiry and they were given opportunity by the Inquiry Committee to explain the purchases which were found to have been made in violation of the rules and regulations. For the purpose of an action under Section 17(1-A) of the WAPDA Act, the appellants were given enough opportunity of giving explanation to what was detected to have been done in fraudulent manner. This ground is not sustainable.
56. In the result, the appeals have no merit and they are dismissed with no order as to costs.
ORDER OF THE TRIBUNAL By virtue of proviso (a) to subsection (2) of section 3-A of the Service Tribunals Act, 1973, the decision of the Tribunal, in terms of majority opinion, recorded by the Chairman and Mr. Khawaja Abdul Jalil, Member, is that all the appeals stand dismissed with no order as to costs.