1. ' AJMAL MIAN, C.J.---This is an appeal with the leave of this Court against the judgment dated 23- 2-1993 of the Federal Service Tribunal, Islamabad (hereinafter referred to as the Tribunal) against the order dated 1-6-1989 passed under section 17(1-A) of the WAPDA Act (hereinafter referred to as the Act) removing him from service, dismissing the same.
2. ' The brief facts are that the appellant who was working as Line Superintendent Grade-II in the respondent-authority, was placed under suspension by order dated 10-1-1980. Subsequently, he was dismissed from service on 22-10-1981 pursuant to a decision by the Special Judge (Central) in a criminal case. The appellant assailed the above order before the Labour Court No, 2, Lahore, who by its order dated 1-8-1982 reinstated the appellant. He also challenged the order of the Special Judge (Central), Lahore before the Lahore High Court through an appeal, which was allowed.
3. Pursuant to the above reinstatement order the appellant was taken on duty. However, he was again suspended, which he challenged by filing Appeal No, 185(L) of 1988 before the Tribunal. After that the appellant was served with show-cause notice dated 28-9-1988 to which he replied.
4. However, he was removed from service under section 17(1-A) of the Act by order dated 1-6-1989.
5. Thereupon, after availing of the departmental appeal, he filed the above appeal 'before the Tribunal, which was dismissed. After that the appellant filed petition for leave to appeal which was granted to consider, whether the impugned order was in violation of the law laid down by this Court in Ghulam Farid and Usman Ghani's cases (1992 PLC (C.S.) 1199) and (1986 SCMR 1875).
6. ' In support, of the above appeal, it has been vehemently urged by Hafiz Tariq Nasim, learned counsel for the appellant, that the impugned order of removal from service is not simpliciter removal order but it is founded on the show-cause notice containing charges and the appellant's reply to it, and hence it is not covered by section 17(1-A) of the Act.
7. ' On the other hand, Mr. Gul Zarin Kiani, learned counsel for the respondents, has contended that the impugned order is in terms of section 17(1-A) of the Act .And does not suffer from any legal in firmity; He further contended that the appellant's appeal before the Tribunal was time-barred but the Tribunal has not adverted to the same. His last submission was that this is not a fit case in which this Court should intervene as the matter had been under litigation for quite considerable period as referred to hereinabove.
8. It seems that before the Service Tribunal the question of limitation was not agitated and, therefore, we are not inclined to entertain the above plea. Furthermore, the factum that the parties had been litigating for quite some period would not disentitle to the appellant a relief if he is otherwise entitled to it under the law.
9. ' Adverting to the main submission as to whether the impugned order of removal of the appellant from service suffers from any legal infirmity, it may be advantageous to reproduce the same, which reads as follows:-- ' "After considering his defence reply to the show-cause notice and giving personal hearing to him, the Authority in exercise of powers conferred on it under section 17(1-A) of WAPDA Act, 1958, has decided to remove Mr. Aleem Jaffar, Line Superintendent-II, Rang Mahal Sub-Division No, I, WAPDA, Lahore, from service, with immediate effect, by giving him 30 days' pay in lieu of notice."
10. ' A perusal of the above order indicates that the appellant was removed from service after considering his defence reply to the show-cause notice and it was not simpliciter order of removal from service. It may also be advantageous to reproduce the show cause notice dated 28-9-1988 (at page 43 of the paper book) which reads as follows:- "Subject: SHOW-CAUSE NOTICE
1. You, Mr. Aleem Jaffar, Line Superintendent have been accused of making an unauthorised addition in store requisition No, 2245/3 (WASP conductor valued at Rs,7,200) and later drew the item against the forged requisition.
2. With a view to satisfying requirements of natural justice and to ensuring fairplay, the Authority has decided to serve you with this notice to show cause within 7 days of receipt thereof 'as to why you should not be retired or removed from service under section 17(1-A) of WAPDA Act, 1958.
3. You will have the right of personal hearing before the Authority, if you so desire."
11. ' A bare perusal of the above-quoted show-cause notice shows that the appellant was accused of making an unauthorised addition in store requisition No, 2245/3 (WASP conductor valued at Rs,7,200). He was also accused of drawing the item against the forged requisition. In our view, the above removal order is not simpliciter removal from service in terms of section 17(1-A) of the Act, but it is founded on the above serious charge.
12. ' At this stage it may be appropriate to observe that prior to the amendment of the above subsection (1-A) of section 17 by Act XIII of 1994 on 6-7-1994, it was also provided by this Act that the respondents-WAPDA can retire or remove its employees 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. In this regard reference may be made to the case of Aijaz Nabi Abbasi v. Water and Power Development Authority and another (1992 SCMR 774), wherein it has been held that WAPDA has the power to remove or retire its employee at any time without assigning any reason after giving him not less than thirty days' notice or pay him for the period by which such notice falls short of thirty days. However, it was pointed out that the above power was not unfettered or unbridled or arbitrary by observing as under:- "Though section 17(1-A) of the Act seemingly confers on the Authority plenary power to remove or to retire an employee of WAPDA at any time 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, however, it does not mean that the Authority enjoys above power unfettered or unbridled or arbitrary. The object of conferring such power seems to be to make easier for the Authority to remove from service surplus and/or inefficient ,and/or corrupt employees without holding long drawn departmental enquiry in order to make the establishment more viable and efficient and, therefore, exercise of the above power should be directed to achieve the above objective. It is to be exercised in good faith by the repository of the power, untainted with bias or mala fide or consideration other than the above objective and, therefore, any action in violation of the above basic norms will warrant interference by the Tribunal and this Court."
13. ' The above view has also been referred to in a recent judgment of this Court in the case of WAPDA and others v. Sikandar Ali Abro and others (1998 SCMR 137), wherein after referring to the case-law the following principles have been deduced: "(i) That the provisions of section 17(1-A) in. The nature of a terms and conditions of the appointment of the employees of WAPDA, and therefore, the Authority while taking action against an employee in terms of section 17(1-A) (ibid) is merely enforcing a condition of appointment which cannot be treated as a penalty;
(ii) that the removal of an employee of WAPDA under section 17(1-A) of the Act is not a penalty and no stigma is attached on account of such removal;
(iii) that merely for the reason that the Authority before taking action under section 17(1-A) of the Act against its employee, had also commenced disciplinary proceeding against him under the Rules, is not enough to deprive the Authority of its power to take action against such, an employee under section 17(1-A) of the Act; and
(iv) that the action of the Authority under section 17(1-A) of the Act can be successfully challenged before the Service Tribunal and this Court on ground of mala fides, coram non judice and lack of bona tides."
14. ' It may be noticed that in above-quoted sub-para. (iii) it has been observed that the Authority would not be deprived of its power to take action under the above provision of the Act against an employee merely for the reason that it has commenced disciplinary proceedings against the employee concerned before passing an order under section 17(1-A) of the Act. The above position seems to be correct if so long as the impugned order of removal directly or indirectly does not refer to any alleged misconduct. In other words, if the impugned order of removal or retirement is simpliciter and if it is not tainted with any mala fide, the factum that the Authority before passing of such order had initiated departmental disciplinary proceedings would not render the order in any way legally defective. This seems to be the well-settled proposition. In this regard reference may be made to the case of Abdul Karim v. The West Pakistan Province (PLD 1956 SC (Pak.) 298) in which the petitioner was a temporary employee of the P.W.D. Whose services could be terminated on one month's notice. He was served with a list of charges of misconduct and was asked to show cause why he should not be dismissed. He answered the charges, however, no action was taken on the basis of the inquiry. After that he was served with a notice of termination without reference to the show-cause notice or inquiry. This Court upheld the above termination order by holding that termination was not necessarily mala fide inasmuch as, it was open to the dismissing authority not to have recourse to the power of dismissal which was a drastic step and which would affect subsequent employability of the public servant, but to terminate service on one month's notice in accordance with the condition of his employment. The same view was reiterated in the case of The Secretary, East Pakistan Industrial Development Corporation, Dacca v. M.D. Serajul Haque (1970 SCMR 398). In the above case allegation of inefficiency was mentioned in the office note, yet in the order of terminating the respondent's service no reference was made. It was held that the above termination of the respondent's service was not by way of penalty as the termination order did not contain any charge or stigma, and therefore, it was valid.
15. ' However, it may further be observed that this Court has also held that even in the case of temporary employee whose service is liable to be terminated on thirty days notice or pay in lieu thereof on either side, his services cannot be terminated on the basis of misconduct without holding proper inquiry. In this regard reference may be made to the case of the The Secretary, Government of the Punjab through Secretary, Health Department, Lahore and others v. Riaz-ulHaq (1997 SCMR 1552); Muhammad Amjad v. The Chief Engineer, WAPDA and another (1998 PSC 337). In the above first case the following observations were made on the controversy in issue: "Without going into the controversy, as to whether the respondent's claim that he was a permanent employee, we may observe that there is a marked distinction' between simpliciter termination of services in accordance with the terms of appointment and the termination of services on the ground of misconduct. There is no doubt that if a person is employed on contract basis and if the terms of employment provide the manner of termination of his services, the same can be terminated in terms thereof. However, if a person is tote condemned for misconduct, in that event, even if he is a temporary employee or a person employed on contract basis or a probationer, he is entitled to a fair opportunity to clear his position, which means that there should be a regular enquiry in terms of the Efficiency and Discipline Rules before condemning him for the alleged misconduct. In this regard, reliance has been placed by the learned counsel for the respondent on the 'case of Muhammad Siddiq Javaid Chaudhry v. The Government of West Pakistan (PLD 1974 SC 393), in which Waheeduddin Ahmed, J. Has succinctly brought out a distinction between termination of services of a probationer on the ground of unsatisfactory performance and the ground of misconduct ' The above view was reiterated in the latter case recently.
16. We are, therefore, of the view that since the impugned removal order is not simpliciter a removal order in terms of section 17(1-A) of the Act but it is founded on the above show-cause notice and the appellant's reply to the same, it is tainted with stigma. We, therefore, allow this appeal, set aside the judgment under appeal and the order of removal. The appellant shall stand reinstated with back benefits. There will be ho order as to costs.
17. ' However, Mr. Gul Zarin Kiani, learned counsel for the respondents requests that it may be observed that it is open to the respondents to pass a fresh order in terms of unamended subsection (1-A) of section 17 of the Act. In this regard it may be pertinent to point out that by Act XIII of 1994 on or about 6-7-1994 the above subsection (1-A) of section 17 was amended, inasmuch as the following words were omitted: ' 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." ' and in their place the following words were added: "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."
18. The above-quoted newly-added words indicate that virtue of the above amendment the respondent-Authority is obliged to inform its employee in writing of the grounds on which such action is proposed to be taken and to give him an opportunity to show cause in writing against the action within a period of fourteen days. In our view the respondent No, 1 is free to pass a fresh order in accordance with the amended provision.