MUHAMMAD RAZA KHAN (MEMBER). ---This single judgment will dispose of connected to appeals as identical questions of law and fact are involved and excepting minor differences regarding the posts held, the period of postings, the nature of responsibility and the situation of postings, the rest of the matters are of similar nature and, therefore, these appeals can be disposed of by a consolidated judgment.
2. Briefly stated all the appellants were working in different capacities as Divisional Accountant, Accounts Clerk and Sub-Divisional Clerk in (hang Division, Operation Division, Jhang and Sadar Sub-Division, Jhang respectively. They were served by an identical show-cause notice issued on 3- 8-1995 containing-to allegations as follows:--
(a) Embezzlement/misappropriation of Public Money amounting to Rs.5,31,169.
(b) Deliberate concealment of cash vouchers worth Rs.26,24,865 to avoid further detection of fraud/misappropriation.
It was added in, the show-cause notice that- the said allegations tantamount to gross: misconduct and financial Ion and the appellants were asked to show cause within 14 days of the receipt of notice as to why they should not be retired or removed from service under section 17(1-A) of WAPDA Act. The right of personal, hearing was also mentioned in the said notice. The appellants submitted their reply and finally vide order-dated 5-5-1996 they were remove from service under section 17(1-A) of WAPDA Act, 1958 on the said charges. After seeking the internal departmental remedy, the appellants have filed the present appeals under section 4 of the Service Tribunals Act, 1973.
3. The respondents contested the cage. Objections were filed supported by detailed documents relating to occurrence and detection of fraud and misappropriation and the fact-finding inquiry.
4. We have listened to the arguments of the learned counsel representing different parties. Two appeals were heard on 16-10-1996 whereas Appeal No. 218(L)/96 was heard on 17-10-1996.
5. The learned counsel for the appellant mainly argued on four grounds: Firstly that the appellants have denied the allegations in their reply and since the allegations pertained to a question of fact, therefore, proper inquiry was necessary and recourse to summary procedure was prejudicial to the rights of the appellants; Secondly, that initially the department had suspended the appellants whereafter the summary procedure was adopted. Therefore, practically the department had switched over from regular to shorter procedure which was not allowed under the law.
Thirdly, that the period of alleged fraud was spread' over a long duration and the appellants stayed for shorter the and that the nature of duties of each appellant and the scope of responsibility was different and they could not be charged under a stereotyped uniformed allegation; Lastly, that one of the appellants was the person who had initiated the report about the fraud being practised and the order was held on his request but still he and others have been made a scapegoat discriminatively to protect the main culprits.
6. The learned counsel for the respondents dealt in detail with the methodology whereby huge fraud and misappropriation was practised and relying on the legal provisions as amended from the to the he stressed that the appellants having been entrusted with the responsibilities to protect the interest of the Authority in financial matters, have themselves involved in the gross- misappropriation, being the worst offence, thereby shattering the trust reposed in them. He, therefore, argued that the appellants were not acceptable to the Authority on the clear proof of their involvement in the said offence as proved by audit report and preliminary enquiry and they have rightly been removed from service, in accordance with the legal provisions. It was further added that there was neither any mala fides nor any legal infirmity in the proceedings. The choice was available to the Authority under the law and by exercise of the said discretion, the action has been taken and since the fraud was detected, relating to heavy amount and spreading over considerable vast period, involving several officials, therefore, complete audit was carried out and the facts finding inquiry was held thereby the guilt of the accused were proved. Therefore, there was no need for any further regular detailed and protracted inquiry under the normal E&D Rules.
We have perused the record and probed the law and the precedents section 17(1-A) of the Pakistan WAPDA Act, 1958, under which the action has been taken against the present appellants, has undergone legislative changes with passage of the. The relevant portion of the said section as it stands today is being reproduced for the purpose of convenient reference:- Employment of Officers and Servants 17 xxxxxxx xxx (1-A) Notwithstanding anything contained in subsection (1) of 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 the retire or remove from its service any person (after informing him in writing of the grounds on which such action is proposed to be taken and giving him an opportunity of showing cause in writing against the action, within a period of fourteen days).
(1-C) Any order of removal or termination of service passed by the Authority in exercise of the powers conferred by subsection (1-A), shall not be called in question in any proceedings taken under the Industrial Relations Ordinance, 1969 (XXIII of 1969), or Essential Services (Maintenance)
Act, 1952 (LIII of 1952) or under any law for the ~ the being in force, before any Court, Tribunal or Commission."
8. Prior to this amendment (made vide WAPDA Amendment Act (XII of 1994) the said section read as under:- "Notwithstanding anything contained in subsection (1), any rules made, 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 the retire or remove from its service any person without assigning any reason, after giving him not less than fourteen days notice or pay for the period for which the notice falls short of thirty days."
Thus prior to 1994 the Authority could dispense with the services of the employees without issuing any show-cause notice and without intimation of grounds of the penalty proposed to be taken against him. This additional facility has been incorporated in the section for the protection of rights of the employees of WAPDA who have been treated as civil servants for the purpose of Service Tribunal Act, 1973.
9. The action of removal or retirement under subsection (1-A) of section 17 of the WAPDA Act, 1958 has not been considered to be a penalty in the earlier precedents relating to the matters decided by the Authority till 1994. An action under this provision was based on administrative expediency.
The law has given an unfettered power to the Authority to remove or retire any employee subject to 14 days notice or pay in lieu thereof. Since this action was based on a phrase "without assigning any reason". Thus, if the Authority considered it expedient to remove or retire an employee without any declared fault on his part, the action could be taken by the Authority under section 17(1-A) of WAPDA Act. However, the application of this section in disciplinary matters will be a misuse of the authority. The wording is somewhat similar to that used in the Civil Servants Act for the termination of the services of employees during the probation period. During probation period service of a civil servant could be dispensed with without assigning any reason and such order does not amount to penalty. However, there have been a number of authorities on the point that if a person is removed from service as a matter of penalty, although during the period of probation, the proper procedure of inquiry is to be held. The E&D Rules of WAPDA provide for the summary procedure as well as a regular procedure to deal with the disciplinary cases of its employees like those of the civil servants under the E & D Rules. If a person is guilty of inefficiency, indiscipline or misconduct, he could be proceeded against at the discretion of the authority. Therefore, when a person is being removed or retired from the service of WAPDA on the basis of some charges, the procedure under the said rules is to be followed and action under section 17(1-A) cannot be taken against such employee.
10. It appears that there had been some doubts about the exercise of authority under section 17(1- A) and the WAPDA Employees (E&D) Rules and the said confusion was aggravated by the discretion of the administrative type to take action against certain employees under section 17(1-A) and against other under the E&D Rules. The basic philosophy of section 17(1-A) was, therefore, ignored and section 17(1-A) was considered to be an effective and quicker remedy in cases of grave nature, whereas the intention of the legislature was entirely different. Penalties could not be imposed under section 17(1-A) without assigning any reason in a developed democratic society.
Due to the excessive use or misuse of the authority under section 17(1-A), and similar other exercise of discretion by other agencies, the learned Federal Shariat Court held that no action can be taken against a citizen without issuing him a show-cause notice. This principle was later on confirmed by the Honourable Supreme Court of Pakistan by holding that the principle of natural justice has to be read as part and parcel of each legislation and no action adverse to the right of interest of citizen should be ordered without issuing a show-cause notice to him. Consequently WAPDA adopted a practice of issuing show-cause notice to employees prior to taking action under section 17(1-A), although not then specifically mentioned therein.
10-A. In 1994 a major amendment was made in section 17(1-A) as reproduced and para. 7 hereinabove, whereby the Authority was bound to issue a show-cause notice to an employee who is proposed to be removed or retired under section 17(1-A). This amendment had three effects.
Firstly, that a show-cause notice was necessary which should be in writing containing the grounds thereof; secondly, that the show-cause notice may also contain the action which was proposed to be taken against the employee on the said grounds; and thirdly that the employee must be given a period of 14 days for his reply. By another amendment section (1-C) was included therein whereby the order of removal or retirement passed under section (l.-A) was not liable to be called in question in any proceedings before any Court, Tribunal of Commission. Thus, by the said amendment the Authority was, on the one hand, compelled to follow the particular procedure and on the other hand the action of the Authority was given due protection. In such a situation it is necessary to see whether the purpose of the legislation has been fulfilled by the said requirements.
11. In these appeals the show-cause notices have been issued and the appellants have controverted the disputed facts as well as their responsibilities. They were also admittedly provided with an opportunity of personal hearing as well whereafter, the penalty of removal from service was imposed. We specifically asked the learned counsel for the respondents whether the action taken by the authority was based on administrative expediency or was it a penalty? He frankly admitted that the appellants were guilty of misappropriation, therefore, they were penalised by removal from service. In such a situation one has to analyse whether the mere issuance of show- cause notice, getting a reply and affording opportunity of hearing was the only purpose of the legislature to vest the Authority with the unchallengeable discretion. The term 'show-cause notice' itself denotes that in case of denial or rebuttal the issuing authority can modify or change the proposed action. There is no fun that after issuing a show-cause notice (in disputed questions of fact) and getting a reply controverting the fact, and without holding the persons liable in a proper inquiry, their services should be dispensed with as a penalty. Not only this but such autocratic actions may also have the protection from being challenged in any Court of law or, Tribunal. This cannot be the intention of legislation. The purpose was, like other similar statutes, that the amended section should have been implemented in its proper spirit. The show-cause notice should have been issued and in case of no response or admission, the authority could have taken the proposed action but in the situation where the show-cause notice is rebutted and the allegations are controverted, proper inquiry should have been held under the relevant rules allowing the appellants to participate in the proceedings thereof and then to decide the fate of the appellants thereunder. `Administrative action cannot be taken in controversies about the disputed questions of fact without holding regular inquiry and affording opportunity of cross-examination of the witnesses by the civil servants concerned. Thus, we hold that the purpose of the show-cause notice has not been served, and therefore, the action taken was not in accordance with the spirit of section 17(1-A) and as such the bar contained in section 17(1-C) will not be applicable.
12. During the year 1995 another development took place that vide Ordinance No. XLII of 1995, the WAPDA Act, 1958 was amended and section 4 pf the Act was substituted. Prior to this substitution, the authority constituted of a Chairman and nor more than three members to be appointed by the Government. But by the amending Ordinance, the Authority was re--constituted and thereafter it was to constitute of a Chairman and six Members to be appointed by the Government including the three Members being professionals in the field of Engineering. Management or Finance. The ex- --officio Members were the Secretaries of Government of Pakistan, Ministries of Finance, Water and Power, Planning and Development. The action under section 17(1-A) was required to be taken by the Authority and the Authority was to be the Authority as reconstituted vide the said Ordinance of 1995. The meeting of the Authority which is said to have been held on 10-4-1996 whereby the action of the present appellants were taken was attended by the Chairman and the Member (Water), Member (Finance), Member (Power) and the Secretary of the Authority. There is no record available to show whether the three Secretaries of the Government of Pakistan, who were designated as ex- officio members of the Authority had either been asked to attend or their concurrence has been obtained by the circulation of files. The Notification shows that only the decision was circulated to the Private secretaries of the said Secretaries of the Government of Pakistan but there is no proof that they have participated in the meeting or approved/concurred with the decisions. It appears that, as per past practice, the meeting of the Authority consisting of the Chairman and the three members (not necessarily the three professionals in the field of Engineering, Management or Finance, as required by the Ordinance of 1995) was held and the senior officers, who were specifically included to constitute the Authority, were not associated with the decision making.
Thus, we also hold that the impugned order was passed by an authority which was not properly constituted.
13. In view of the above discussion, we accept these appeals and remand these cases to the Authority for its reconsideration in the light of the above observation and decision of the case in accordance with the law and the rules.
14. No order as to costs. Parties be informed.