' CH. HASAN NAWAZ (MEMBER).---Mere statement of facts will justify, to a great extent, the dismissal of this appeal under section 4 of the Service Tribunals Act, 1973.
2. The appellant, while serving as Line Superintendent Grade-II in the Office of Chief Engineer (E)
WAPDA, Lahore was removed from service by the respondent-Authority on 30-4-1978 in exercise of powers conferred by section 17(1-A) of the WAPDA Act 1958. The order of removal was challenged before the Special Authority under section 6 of the Pakistan Essential Services (Maintenance) Act, 1952. The operation of the order was suspended by the National Industrial Relations Commission on 15-5-1978. Subsequently, the impugned order of removal was set aside by the Commission on 12- 12-1979.
3. Thereafter on 6-1-1980, another order was passed by respondent-Authority which said that orders dated 15-5-1978 and 12-12-1979 passed by the Industrial Relations Commission stand vacated in pursuance of the provisions of subsection (C) of Section 17 of the Act inserted by WAPDA (Amendment) Ordinance, 1979. In consequence, the appellant was relieved of his duties with immediate effect.
4. The validity of order dated 6-1-1980 was challenged before the High Court in a Constitution Petition admitted by order dated 26-1-1980 whereby the operation of the impugned order was suspended. The Constitution petition was finally dismissed by the High Court on 12-6-1982.
5. The appellant then came to this Tribunal with an appeal under section 4 of the Service Tribunals Act, 1973 (No,104(R)/82) on 22-6-1982 which was ultimately dismissed on 21-2-1983. An appeal (No,106(R)/83) filed on 24-5-1983 against the Tribunal's judgment dated 21-2-1983 was dismissed by the Supreme Court on 16-12-1985 with the result that the order of appellant's removal from service passed by the Authority on 30-4-1978 was upheld even by the Supreme Court.
6. After having so failed to obtain any relief, on 15-1-1986 the appellant made an application to the respondents for issuance of an order of his retirement from service to enable him to get post- retirement benefits on the basis of Authority's office order No,F.O.(B&F)/37-9/Vol-IX/2792-2942, dated 25-7-1979. There being no response, he has again come to the Tribunal with the present appeal, for a direction to the "respondent to notify the order of his retirement from service in letter and spirit for his action under section 17(1-A)".
7. Reliance in support is only on this Tribunal's judgment dated 18-9-1984 in the case of Irteqa Rasool Hashmi v. WAPDA (No,121(K)/82), where it was held that "under section 17(1-A) of the WAPDA Act, a WAPDA servant can only be retired and cannot be removed from service as a penal measure" and that "power of removal from its service under the said provisions can be exercised by WAPDA only in respect of a person serving under it, but not being its employee".
8. Since reliance on the Tribunal's judgment in Irteqa Rasool Hashmi is exclusive, its facts are as important as those of the present case. The appellant in that case was also removed from service by the Authority under section 17(1-A) of the Act on 2-6-1977. After having failed in his appeal before the Tribunal under section 4 of the Service Tribunals Act, 1973, he went to the Supreme Court with a petition for special leave to appeal which was dismissed. Thereafter in 1980, he made an application for the grant of pensionary benefits, whereupon Senior Budget and Accounts Officer of the respondents submitted his pension case after due completion to the General Manager Finance on 10-11-1981. However, he was informed through letter dated 4-8-1982 which laid down that WAPDA employees removed under section 17(1-A) of the Act were not entitled to pensionary benefits. He made a representation to the competent authority on 31-8-1982 against the aforesaid decision of the Authority where it was contended that his case was not covered by Notification dated 28-6- 1982. The representation having been rejected by the General Manager Finance through letter dated 2-11-1982, he filed an appeal before the Tribunal under section 4 of the Act on 29-11-1982, which occasioned the aforementioned judgment of 18-9-1984.
9. It was contended on behalf of the appellant in that case that a person removed by the Authority under section 17(1-A) of the WAPDA Act was entitle to pensionary benefits by virtue of office order dated 25-7-1979 and that the Authority's decision contained in Notification dated 28-6-1982 did not hav retrospective effect and cannot thus be applied to his case.
10. It was an admitted position that the Authority's decision contained office order dated 25-7-1979 did entitle the appellant of that case to pensionary and other retirement benefits. It was, however, argued on behalf of the Authority that that office order was superseded by the subsequent decision of the Authority contained in Notification dated 28-6-1982 which amended the WAPDA's Pension Rules with retrospective effect. It was held by the Tribunal that amendment in rules by Notification dated 28-6-1982, could not operate retrospectively and that the appellant was entitled to pensionary benefits on account of the fact that he was removed from service before 28-6-1982, when the rules on the subject were modified. For these reasons it was ruled that "there remains no option but to hold that the respondent-Authority acted illegally and incompetently in taking a decision to disentitle a person removed under section 17(1-A) of the WAPDA Act to the pensionary and other retirement benefits."
11. From the facts it is clear that two considerations weighed with the Tribunal in coming to the aforementioned conclusion: First, the Authority's decision conveyed through Notification dated 28- 6-1982 amending the Pension Rules did not apply to his case because he was removed from service before that date. Second, section 17(1-A) of the Act did not clothe the Authority with the power of removing a person from its service and that the order of removal passed in that case was illegal. The Tribunal was of the view that no legal power of removal from service of its employees could be spelled out of the provisions of section 17(1-A) of the Act.
12. Before proceeding further in the matter, it may be mentioned as an important fact that the WAPDA went in appeal to the Supreme Court against the Tribunal's judgment dated 18-9-1984 in Irteqa Rasool Hashmi's case (Appeal No,121(K)/1982). It was, however, dismissed with the ruling "that by virtue of all existing rules, respondent No,1 (Irteqa Rasool Hashmi) on his removal from service under section 17(1-A) of the WAPDA Act, 1977, acquired a vested right to the pensionary benefits of which he could not be deprived by a subsequent Notification issued by the WAPDA". The Supreme Court upheld the Tribunal's decision that the appellant of that case who was removed from service under section 17(1-A) of the Act on 2-6-1977 was entitled to pensionary and other post-retirement benefits, on the basis of WAPDA's decision conveyed through office order dated 25-7-1979 (1987 SCMR 359).
13. WAPDA office order dated 25-7-1979 was to the following effect: "A question has arisen whether or not WAPDA employees and Government Servants of Electricity Department who are retired or removed from service under section 17(1-A) of WAPDA Act, 1958, are eligible for pension, gratuity and B.P. Fund Contribution, etc. ' The Authority has decided that WAPDA employees as well as Government Servants of Electricity Department who have been retired or are removed from service under section 17(1-A) of WAPDA Act, 1958, should for the purpose of grant of pension, gratuity, payment of {{BLURR}} `atithorityls own share of contribution towards, B.P.Fund etc. Be governed by the normal terms and conditions applicable to them under the vjilo'' relevant -rules and the fact of their having been retired'- or removed from 'tom-service under section 17(1-A) would not by itself, be taken as a bar to In4heir post-retirement entitlements. ;.,14'
3d WI bdi .1111,-daad 10..Aa:oie.=q Sd/- 313W' boLdza cult no mfiri'ail inflW (Muhammad Siddiq), blod w lad nodqo miklizial tub bfg;;, 2E4 k Director Finance (R&I), gnillal rti vlinzaattnotcolli has y,fisgoili, buim WAPDA."
1,417c.45,7,7
14. This decision seems to have been based on the provisions of rule 7(iv) of WAPDA,Peusion Rules, 1977, which make the following reading: dArg 7(iv)-- No pension may be granted to WAPDA employees fidass_dismissed or removed, for.
Misconduct, corruption, subversive activities or ;HI 4: inefficiency but if he deserves special consideration, he may be granted a compassionate allowance not exceeding 2/3rd of the pension which would have been admissible to him if he had retired on invalid pension."
15. Hoiiver, the Authority amended rule 7(iv) of the Rules by means of NotificatioliV2ted18-6-1982 which reads as under:--.3!-; "":16f134.; 11111 11- (A-1r1 t.
"No,F.B&F/37-9/Vol.XV/7877-8077, dated 28-6-1982. ra.' low:x.4aq '7 NOTIFICATION 6NgSubjeCi: Pakistan WAPDA Pension Rules.
1977. Ila mud In exercise ;of,..The powers conferred on it by section 18 of the Pakistan .WAPPAcit4958 (Pakistan. Act.No,XXXI of 1958), the Authority has 1,734 :been pleased to, add, ab initio, the words "or removed by order under dam,section ,17(17A) of WAPDA Act", after the word "inefficiency", appearing It.Bnuitt-line 3 of failtple (iv)> of Rule 7. Chapter-I of the Pakistan WAPDA -1?
0,7 -tension Rules,t977. The ameAded,provision will now read as under:- 3 geptension--tita te granted to a WAPDA employee dismissed or removed for misconduct, corruption; subversive activities or inefficiency, or remoyed, by.Grdor _under section-17(17A) of WAPDA Act, but if he bri deserves special consideration, he may be granted a compassionate g; 1 .t allowance not eftCekddig' 2/34 of the pension which would have been invaliciPetisiiii."""""'L) v-IAW I noitit:e rno's1:40voity'r .313 hrw7f e; Sat- AL lbw a bol:lrrsaAG,Aw if,,41 Tajammul Hussain, ri5.3d *veil orkt 5rnt Man:RA1.1 Finance. (Coordination), 1)A tolcIAW to ;toile taf,11 WAPDA."
16, As already seen before, .Iir.Hashmi had Werr` iiiidviiliilfin'service on 2-6-1977, long before the aforementioned amendment brought about by Notification dated 28-6- 1982. The Supreme Court took notice of the: factlhat before this amendment, employees who were retired or removed-tinder itittion 17(1-A) of`the Act were entitled to all the pensionary benefits noititidly ay-tillable to WAPDA employees; that these benefits were denied only in -the =Case of employees who were dismissed or removed for misconduct, corruption, Subversive activities or inefficiency and that by insertion of the words "or removed by order under section 17(1-A) of the WAPDA'Act",=eien employees against whom no distiplinary action by way of punisinnt4it was men, were sought to be placed in the same category of persons not entitled to iiiiittenefits. Before the Tribunal,-it was contended on behalkOfritt*Mthsfr4,-Mr:1-1,ashmi's case, who had. Been removediiin2,64977 beforo4WAInandineAPC28 49,471A4i the amendment affected 'hisWae,because it was: intended by that section- 18 4-the WAPDA Act 400EonCti,grnnli suckanthorityI to WAPDA to alter. r change the service rules touchinglthe terinkandsonflitionspf employees, with retrospective operation, so as to rob them of vested: fights accrued in their favour. .::.
17. The facts of the preSent taie are, however, distinguishable from those of Mr. Hasluni's case. As already mentioned before, the' pp claiined in para. 6 of his appeal; that he "continilbifi!Ecremal- in the kirvice Ltit2the respondents up to 7-7-1982 without any breaktftin the basis of staj, drilerceissued v by the National Industrial Relations CommisSirm-the High Court and the Service Tribunal on various occasions. I feel that the reasons for stay are immaterial and what is important is the fact that even according to his"criiii case, theappeltant remained in service without break till 7-7-1982, when amendment Iiiiiik!t(iV) of the Pension Rules had already been brought about by the Notifie:itiOklated 28-6-1982. Under the circumstances, the appellant of this case will-be:6i* to have been removed from service on 7-7-1982, although the order for his treirloval from service under section 17(1-A) of the Act was passed- by the respondent Authority in actual, fad on 30-44978. He will, according tots own ,fast, be deemed,to have been: so -removed only on 7,7:7111,82, after 111P., Pension Rujqs.,had already been amended' ; through Notification dated 28-6-198241144, down4hat employees removed from service under section 17(1-A) of the Act were not entitled to pensionary benefits. This being so, there is no question in this case, as it was there in that of Mr. Hashmi, of retrospective application of the Authority's subsequent decision of 28-6-1982 amending the relevant The appellant continuously availed of the privileges of his service till 7-74982'and we are of the view that there would be no justification for grant of pensionary benefits to him for the period from 14-1978 to 7- 74982. This is evidently beeduse of the {{BLURR}} consideration that he cannot claim pensionary benefits as also other emoluments which he has been receiving during this period. We are conscious of the fact that his removal came about on 30-4-1978 before the amendment of Pensionary Rules on 28-6-1982. However, under the circumstances, we treat the order of removal as having been passed on 7-7-1982 rather than 30- 4-1978; obviously on the ground that he remained in enjoyment of his usual emoluments during all that period. For these reasons, we hold that on the basis of different facts he is not entitled to pensionary benefits in view of amendment in the Pension Rules by Notification dated 28-6-1982.
18. The facts provide us with another distinction. In Mr.Hashmi's case, an application was made to the Respondent-Authority in May, 1980 for grant of pension, after the order of removal under section 17(1-A) of the Act had become final in consequence of the dismissal of his appeal to the Supreme Court. After due process, the Senior Budget and Accounts Officer of the Authority submitted the pension case to the General-Manager Finance through letter dated 10-11-1981.
However, Mr.Hashmi was informed by letter dated 4-8-1982, by the Director Administration that the WAPDA employees removed under section 17(1-A) of the Act were not entitled to pension.
Mr.Hashmi challenged the validity of this order in departmental representation dated 31-8-1982 which was rejected by the competent Authority. After having been informed of the rejection of his representation through letter dated 2-11-1982 he filed an appeal on 29-11-1982 before the Tribunal under section 4 of the Service Tribunals Act, 1973. In the present case, however, after his appeal was dismissed by the Supreme Court on 16-12-1982, the appellant made application dated 15-1-1986 (AnnexureI) to the respondents praying "that necessary Notification regarding post-retirement entitlement" may be issued on the basis of office order dated 25-7-1979, so that his pension papers may be prepared. He came to the Tribunal with the present appeal on 8-6-1986, without any order having been passed by the respondents on his application. The result is that there has neither been any impugned order in this case nor any departmental representation to fulfil the jurisdictional requirement under section 4(1)(a) of the Service Tribunals Act, 1973.
19. This was in respect of first consideration leading the learned Tribunal to a favourable decision in Mr.Hashmi's case. The second consideration, as already noticed, became available from the provisions of section 17(1-A) of the Act which were reproduced by the Tribunal in the judgment of Mr.Hashmi's case in the following manner: "(1-A) Notwithstanding anything contained in subsection (1) or any rules made, or orders or instructions issued, by the Authority, or in the terms and conditions of service of any person employed by, or serving under the Authority, the Authority may, at any time, retire or remove from its service any person without assigning any reason, after giving him not less than thirty days notice or pay for the period by which such notice falls short of thirty days".
20. Learned Tribunal expressed itself on the point in the following manner: "Though it is not very clear from the language employed in the provision, the only correct interpretation thereof would be that the words "retire" and "remove from its service" relate respectively to expression "any person employed by" and "serving under the Authority". In other words the Legislature. Intended to empower the Authority to retire only a WAPDA servant and to revert only a person serving on deputation with WAPDA to his parent department or organization.
Indeed, by no stretch of law or imagination an employee of other organization/department serving on deputation with the WAPDA could be retired by WAPDA, rather, could only be sent back to his parent department or organization if his services are no longer required by the WAPDA for one reason or the other. The only possible construction of expression "remove from its service" can be removal from the service of the WAPDA and not the termination of incumbent's own service".
21. It may here be mentioned that in appeal before the Supreme Court the WAPDA's learned counsel does not appear to have questioned the learned Tribunal's interpretation of the provisions of section 17(1-A) of the Act. This aspect of the matter not having been examined, we venture to record our respectful disagreement with the learned Tribunal's interpretation. We do not think it is correct to say that the words 'retire' and 'remove from its service' relate respectively to the expressions 'any person employed by' and 'serving under the Authority'. Careful application to the provisions of subsection would show that the expression "any person employed by" or "serving under the Authority" are connected with what proceeds them rather than what follows. There is no doubt, as has been pointed out by the learned- Tribunal in Mr.Hashmi's case, that the phrase "any person employed by" or "serving under the Authority" speaks of two categories of persons. The first is of those who are in the employment of the Authority. The second is of those who are its employees but serving under it on deputation or otherwise. But the fact of this phrase visualizing two distinct categories of officials of the Authority is immaterial in so far as the present discussion is concerned. What is of real importance in the context of the point raised by the learned Tribunal is that the phrase, in respect of either of the categories, has nexus with what precedes it and it has got nothing to do with what succeeds. This phrase is wedded with the preceding phrase "in the terms and conditions of service". We will make our point of view more clear by saying that the phrase "or in the terms and conditions of service of any person employed by or serving under the Authority" has to be read as a whole as one expression in conjunction with the phrase "Notwithstanding anything contained" occurring in the earlier part of the subsection.
22. This discussion brings us to the conclusion that the power given to the Authority, whatever that power is, can be exercised regardless of (a) anything contained in subsection (1) of section 17 of the Act or (b) any rule, orders or instructions, made or issued by the Authority, or (c) in the terms and conditions of service of 'any person employed by' or 'serving under the Authority'. Those in respect of whom this power can be exercised by the Authority have been mentioned in the expression "any person" occurring after expression 'retire' or `remove from its service'. The words 'any person' occurring before this phrase have connection with what precedes those words, whereas the expression "retire" or "remove from its service", refers to the words 'any person' occurring after it, although these words in both the cases speak of two distinct categories of officials, that is to say, those who are employees of the Authority and those who are serving under it on deputation. If the interpretation put by learned Tribunal on the provisions of this subsection in Mr.Hashmi's case be assumed as correct, the use of words 'any person' after the expression 'may retire' or 'remove from its service' would become redundant and absolutely meaningless. They, in that case, would not be serving any purpose. It is an accepted principle of interpretation that no word used by the legislature is in vain and some meaning has to be assigned to the words or phrases used by it in an enactment. If this be so, as it is, the only logical conclusion would be that object of the powers to 'retire' or `remove from its service', is without an iota of doubt 'any person' mentioned after the expression and not before it; more so when the words 'any person' used before those expressions, have something else for reference in the phrase 'terms and conditions of service'.
23. There is another aspect of the matter. Even if the learned Tribunal's reasoning in Mr. Hashmi's case be taken as sound, we are with respect unable to agree that the conclusion arrived at by them is correct. We take it as a fact, only for argument's sake, that the expressions "retire" or "remove from its service", are relateable to what has preceded. The provisions of subsection (1-A) give an option to the Authority either to retire or remove from its service. The appellant of this case was admittedly an employee of the Authority. Therefore, the discussion regarding whether the power of retirement or removal from its service, is available to the Authority in respect of those who are under its service or deputation is irrelevant. We are concerned in this case only with those who are employed by the Authority. Even if the expression 'may retire or remove from its service' may be assumed to have referred to the words 'any person' preceding it, both the powers of retirement as also removal from its service will be available to it in respect of those employed by it. The application of the expressions `-- y retire' or 'remove from its service' is not respective as held by the Tribunal in Mr.Hashini's case, and either of the powers can be exercised by the Authority. In other words 'any person' even if it is the one which precedes, is the attribute of both the powers namely 'may retire' and 'remove from its service'. The expressions 'may retire' and 'remove from its service' apply independently of each other to the words 'any person' wherever they are used in the subsection; which means, as already held, that both the powers of retirement and removal from its I service are available for exercise to the Authority.
24. The following observations made by the learned Tribunal in the previous judgment are also worth notice: "It is to be further seen that the word "removal" has not been defined anywhere in the relevant statutes. Of course, in the Wapda Employees (Efficiency and Discipline) Rules "removal" has been prescribed as one of the major penalties which undeniably can be imposed only after following the procedure prescribed in the said Rules. Thus removal from WAPDA service under section 17(1-A) and removal as a penal measure is quite different and distinct and can, in no way, be equated with each other. It would be too much to suggest that a Wapda servant can be removed from his service as a penal measure in an arbitrary and brute manner under section 17(1-A) of the Wapda Act. Under the Constitution and law a punishment cannot be imposed upon a person unless he is provided a reasonable opportunity at least to explain his conduct. There can again be no doubt that the legislature never intended to confer by section 17(1-A) or the power of removal from service of a Wapda servant as a penal measure. The opposite view, in our opinion, would clearly be contrary to the Constitution, the law and the injunctions of Islam, which we are duty bound to follow".
25. We are obliged to say that this discussion regarding removal from service a punitive measure is not of any consequence, which is for the simple reason hat it has been held in a large number of cases by the Supreme Court that the Authority has got the power of removal of its employees from service. It has been noticed by the Tribunal as also the Supreme Court in number of cases that power .f compulsory retirement or removal from service given by section 17(1-A) was to enable the Authority to purge its ranks from corrupt and undesirable employees. Where has the Supreme Court ruled that the Authority does not have the owner of removing its employees from service. It is now a settled law that this ower is available to the Authority. Even in the present case, the appellant's appeal to the Supreme Court against the order of his removal has been dismissed d the Authority's order has been upheld as legal. Therefore, the distinction made by the Tribunal in the significance of the word "removal" used in section 7(1-A) and the WAPDA Employees (Efficiency and Discipline) Rules, is commentarial. Then, it may be pointed out that compulsory retirement has also been prescribed as one of the major penalties in the Disciplinary Rules like removal room service. Now if the power of compulsory retirement given by section 17(1-A) justified, there is no reason why the same should not be said regarding removal om service.
26. For these reasons, we hold that the Authority had every justification to regard the appellant's application dated 15-1-1986 for pensionary benefits. The appeal is accordingly dismissed as being without any substance. There will however, be no order as to costs. Parties to be informed.