1. ABDUL KADIR SHAIKH, J: --Both these appeals by leave are directed against the same judgment of the Federal Service Tribunal dated 4-8-1986 by which appeal filed by Naseer Ahmed Uppal, appellant in Civil Appeal No.12-Q of 1987 and respondent in Civil Appeal No.195 of 1987 (hereinafter referred to as appellant) was allowed with the result that his removal from service of Pakistan Water and Power Development Authority, respondent in Civil Appeal No.12-Q of 1987 and appellant in Civil Appeal No 195 of 1987 (hereinafter referred to as WAPDA) was set aside and it was directed that the period for which he remained out of service shall be treated as extraordinary leave without pay. Facts of the case briefly stated are as under:-- While appellant was posted as Divisional Accountant in WAPDA he was removed from service by the order dated 10-8-1983, passed under the provisions of section 17(1-A) of WAPDA Act. This provision of law reads as under:-- "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."
2. Appellant made a representation to the Chairman, WAPDA against the aforesaid order and failing to get any, response thereto he then filed an appeal before the Service Tribunal on 27-3-1983. The Tribunal on the facts and circumstances condoned the delay in filing of the appeal, and on merits of the case held that appellant's case was not fit in which action under section 17(1-A) of the WAPDA Act should have been taken.
3. In order to appreciate the submissions raised in support of both these appeals we may usefully reproduce the relevant portion of the impugned judgment of the Service Tribunal:-- "On merits, it appears that there were some serious irregularities in connection with the work carried out at Qila Saifullah. The Executive Engineer and S.D.O. And certain other persons were found guilty of embezzlement of the Wapda amount. During the inquiry, the name of the appellant also appeared in this context. The relevant portion recorded in the inquiry report against the appellant reads as follows:-- "Tender/Contract documents had not been prepared as per Authority's Instructions and M/s. Abdul Majid Bhatti, XEN, Muhammad Arif and Nasir Ahmed Uppal, Divisional Accountant are mainly responsible. The Staff of Chdirman Area Electricity Board, Quetta specially Mr. Ikramullah Khan Director (Accounts) also failed in their duties in detecting various omissions, defects, deficiencies, interpolations, non-inclusion of 25% premium in Estimates/Bill of Quantities, Inviting Separate Item Rates for non-schedule items etc. The Authority may like to take suitable disciplinary action against them."
4. In our opinion, failure to observe the directions strictly is not an act which would call for an order of removal from service. No part has been attributed to the appellant in the embezzlement of the amount in connection with the works at Qila Saifullah. The name of the appellant only appears indirectly. Had the matter been examined under the Efficiency and Discipline Rules, the appellant would have, perhaps, been let off with a warning. In these circumstances, we are firmly of the view that this was not a fit case in which action under section 17(1-A) of the WAPDA Act, should have been taken.
5. It may also be mentioned that the respondents have not placed before us the order of the Authority which could show as to what material led it to pass an order against the appellant.
6. In the circumstances, we accept this appeal, set aside the order of removal of the appellant and reinstate him into service forthwith. The period during which (sic).
7. Leave to appeal was granted to the appellant Naseer Ahmed Uppal to consider the plea advanced on his behalf that on the facts found by the Service Tribunal appellant should have been granted full back benefits, in that full pay, emoluments etc. Should have been granted to him for the period for which he had remained out of service.
8. On the other hand, leave to appeal was granted to WAPDA-appellant to examine the plea that the Service Tribunal should not have interfered with the order of the departmental authority passed in the discretionary exercise of jurisdiction by the special provision made under section 17(1-A) of WAPDA Act. In this behalf, it was urged that no mala fides was alleged against WAPDA and there was sufficient material against Naseer Ahmed Uppal for action under the aforesaid provision of law.
9. We have heard the learned counsel for the parties and gone through the record. According to Mr. Muhammad Sadiq Abbasi learned counsel for WAPDA the record of the proceedings with the published report of the committee which examined the case against the appellant and other employees of WAPDA was produced before the Service Tribunal from which it is clear that the appellant had been guilty of illegal acts committed by him in complicity with Abdul Majeed Bhatti, XEN Civil, Nadir Khan Khoso, S.D.O. Construction (Power), and Ramesh Lal, XEN Construction, and Chairman, Area Electricity Board, Quetta, and they were responsible for causing loss amounting to Rs.2,31,29,129 for allowing rates for construction of civil and electric works at much higher rates as comparable to other similar works. The appellant as Divisional Accountant under WAPDA was to apply preliminary checks, as representative of Audit Department and it was his duty to scrutinize the contract documents, measurement books and bills of contractors. On the detection of the crime a F.I.R. Was registered with F.I.A. And prosecution was awaiting sanction from the Central Government under Prevention of Corruption Act, 1947. It thus clearly appears that in view of the findings of a high powered committee constituted by WAPDA in which appellant's role in the offence was reported that action against him was taken under the provision of section 17(1-A) of WAPDA Act. This is therefore not a case in which it could be said that there was no material with WAPDA for taking impugned action against the appellant or that the action taken was mala fide.
10. For these reasons, Civil Appeal No.195 of 1987 must succeed, and it is accordingly allowed with the result that the impugned judgment of the Service Tribunal is set aside and the order of removal of appellant Naseer Ahmed Uppal under section 17(1-A) of WAPDA Act is upheld. In view of the result of Civil Appeal No.195 of 1987, Civil Appeal No.12-Q of 1987 stands dismissed. The parties are however left to bear their own costs.