ABDUL RAZZAQ A. THAHIM (CHAIRMAN): --This appeal filed by Mr. Zahoor Ahmed, who was Line Superintendent-I in the WAPDA, is directed against the order of his removal made under section 17(1-A) of the WAPDA Act, dated 10-8-1983.
2. Briefly, the facts of this case are that Appeal No.1(Q)/84 filed by the appellant against the impugned order dated 10-8-1983 was rejected by the Tribunal on the point of limitation by order dated 4-8-1986. He filed Civil Appeal No. 196 of 1987 in the Supreme Court. The case was remanded by the Supreme Court by judgment dated 23-10-1990 and the order of the Tribunal was set aside with the direction that application filed under section 5 of the Limitation Act explaining the delay in filing the appeal before the Tribunal after 18th of December, 1983 and for dealing appropriately with it under the law. The appeal came up before a Bench of the Tribunal on 9-4-1991 when the learned counsel appearing on behalf of the appellant, Mr. Fazal Elahi Siddiqi, Advocate, did not press the appeal on merits but requested for reduction of quantum of punishment and the Tribunal by judgment dated 9-4-1991 considering the length of service of the appellant and rigours of litigation modified the punishment of removal to that of his compulsory retirement from the date of the impugned order.
3. Being dissatisfied with this judgment of the Tribunal, WAPDA filed Civil Appeal No. 221 of 1991 in the Supreme Court and once again the case was remanded to the Tribunal with the observations that the question of limitation first be determined and that the impugned order of Tribunal also failed to disclose necessary reasons justifying conversion of removal of respondent from service into retirement.
4. This appeal came up for hearing on 20-1-1993. On the point of limitation. Mr. Fazal Elahi Siddiqi, Advocate representing the appellant argued that the appellant has tiled an application under section 5 of the Limitation Act separately, alongwith the memo. Of appeal, for condonation of delay from 15-12-1983 to 5-4-1984. Therefore, the application for condonation of delay may be accepted as it was beyond the control of the appellant to have filed appeal within time as he was sick and he produced medical certificate in support of his application.
5. Mr. Muhammad Sadiq Abbasi, learned Advocate for WAPDA has opposed the application and submitted that the appellant was never admitted in the Hospital. In support, he produced one Certificate. Therefore, application for condonation of delay be rejected.
6. With regard to Service Rules. Of WAPDA, there is no provision for appeal. Therefore, review was filed because WAPDA itself had been entertaining such review applications against order made under section 17(1-A) of the WAPDA Act and after expiry of 90 days waiting period, the appellant could not file appeal within 30 days and in support of delay filed a medical certificate. In the comments, the respondents took preliminary objections that the appeal is barred by time and is not maintainable and had not disputed the genuineness of the medical certificate produced by the appellant. In this context, reference is made to the case reported in 1982 SCM R 582 (Haji Kadir Bux v. Province of Sindh) and the principle laid down therein does apply in this case. The respondents at no time produced the certificate which has been filed at the time of hearing. This certificate controverts the allegation that the appellant was not hospitalised. It is for the first time that this certificate was produced at the time of hearing and it is not supported by any affidavit.
This is a matter of eight years old. The first medical certificate was produced at that time. The certificate produced by the respondents and that too after 8 years without any other proof. In these circumstances, delay is condoned and let us decide the appeal on other considerations.
7. Mr. Fazal Elahi Siddiqi, Advocate for the appellant has tried to argue this appeal on merits. His contention was that his client did not press the appeal on merits earlier but since appeal has been remanded by Supreme Court and respondent WAPDA has resisted, he can argue merits, and he is not debarred from arguing the merits of the case. He was heard.
8. The learned counsel for the appellant contended that the appellant was a Line Superintendent-I.
He was neither incharge of the construction work at Qilla Saifullah to Loralai Project, nor did he take measurements. On query, Mr. Sadiq Abbasi, learned Advocate for Wapda, frankly admitted that there is nothing adverse against the appellant in service record except these allegations. The learned counsel for the appellant submitted that in an identical case of Mr. Nadir Khan Khoso who was Executive Engineer, Incharge of Qilla Saifullah Project, was also removed under section 17(1-A).
He filed appeal before the Tribunal which was allowed and the appellant was reinstated. It was stated that WAPDA accepted the judgment of the Tribunal and not filed any appeal.
9. Action under section 17 (1-A) is subject to scrutiny by the Tribunal on limited scope according to law laid down by the Supreme Court in the case reported in 1986 SCM R 18. Therefore, we have to examine this case in the light of the observations and guidelines of the Supreme Court. The appellant has not alleged any mala fide on the part of the respondents, but his case is that he was hardly concerned with the recording of measurement work at Qilla Saifullah to Loralai Project nor was he incharge of that this fact has clearly been stated is para. 3 of the memo of appeal.
Respondents have not controverted the stand of the appellant. It may also be mentioned here that in similar facts and circumstances, when person has good record, the Tribunal had modified the punishment of removal from service into compulsory retirement and the Hon'ble Supreme Court upheld the view taken by. The Tribunal. Reference is made to the cases reported in 1990 SCM R 934 (WAPDA v. Abdul Sattar) and 1992 SCM R 774 (Ejaz Nabi Abbasi v. WAPDA). Frankly, in good faith, appeal was not pressed on merits earlier. The appellant's case merits consideration for modifying the punishment. Appellant has long service and there is nothing adverse during his career. Thus, we exercise our discretion in the light of facts and law. We accordingly convert the punishment of removal from service to that of appellant's compulsory retirement with pensionary benefits. With this observation, the appeal is otherwise dismissed.