' SAIDUZZAMAN SIDDIQUI, J.---The above appeal with the leave of this Court is filed by Water and Power Development Authority (WAPDA) Lahore, against the judgment of Federal Service Tribunal, dated 19-12-1992 partly accepting the appeal filed by the respondent and directing the appellant to settle the claim of respondent within next three months under the relevant rules.
2. The respondent joined WAPDA as Accounts Assistant in 1961 and was promoted to Grade-16 in 1964. He later joined the Mechanized Construction of Pakistan Limited WAPDA in 1968/69 and after having served for about 12 years he rejoined WAPDA on 9-4-1981. He was removed from the service by the appellant under section 17(1-A) of WAPDA Act (hereinafter to be referred to as the Act'). He challenged his removal under section 17(1-A) of the Act first before the Federal Service Tribunal but his appeal was dismissed on 14-12-1982 on the ground of limitation. His further appeal before this Court also failed when it was dismissed on 24-4-1988. Having failed to get the order of his removal set aside, the respondent applied for pensioner benefits in accordance with the rules of WAPDA.
Having failed to get redress from the departmental authority, he approached once again the Service Tribunal through Service Appeal No,159(L) of 1988. The learned Tribunal having noticed that the appellants in some cases have been allowed pensioner benefits while the same benefit was denied to others, allowed the appeal as follows:-
2. Under the above facts and averments made at the Bar, a contradictory situation has emerged i,e, the respondent Department some times had allowed pensionary benefits to certain officials removed under section 17(1-A) of WAPDA Act after FST's judgment in 1984 and Supreme Court's judgment in 1987, but had not allowed the same benefits to the appellant in the instant appeal who had been removed/dismissed under said section 17(1-A) in 1982. We, therefore, partly accept the appeal, remand the case and direct the respondent Department to settle the claim of the appellant within next three months under the relevant judgments/rules. No order as to costs.
Parties be informed.
' Leave was granted in the above case to consider the following contention:-
2. The respondent was an employee of the petitioner. He was removed from service under section 17(1-A) of the WAPDA Act. All his efforts to be reinstated through the Court did not succeed. He made an application that he may be allowed pensioner benefits in the same manner as had been awarded to other employees. The petitioner took the plea that the respondent was removed from service on 21-10-1982, on which date rule 7(iv) of the WAPDA Pension Rules, 1977, stood amended under which the respondent was not entitled to benefits. The respondent had relied on Govt. Of West of Pak v. Nasir M. Khan (PLD 1965 SC 106), Province of the Punjab v. Kamaluddin (PLD 1983 SC 126), Water and Power Development Authority v. Irtiqa Rasool Hashmi and another (1987 SCM R 359) and Riazuddin v. Chairman, P.I.A. Corporation (PLD 1992 SC 531) to contend that he was entitled to pensioner benefits.
3. The learned counsel for the petitioner referred to WAPDA v. Irtiqa Rasool Hashmi (1987 SCM R 359) and contended that it was distinguishable because the employee in that case was removed before the amendment of the Rules and it was held that the same could not be made applicable with retrospective effect. The learned counsel for the respondent contended that the amended rule violates fundamental rights of the respondent and further that the amendment made through a notification is illegal and also that it will not apply to employees who had been in service before the amendment. The questions raised by the learned counsel for the parties require consideration.
Leave is granted."
' We have heard Mr. Sh. Zamir Hussain, the learned counsel for the appellant and Mr. Hafiz Tariq Naseem, Advocate Supreme Court for the respondent.
3. Rule 7 in Chapter 1 of Pakistan WAPDA Pension Rules, 1977 (hereinafter to be referred as 'the Rules'), which is applicable in the present case as originally framed reads as under:-- "Rule 7(iv).---No pension may be granted to WAPDA employees dismissed or removed for misconduct, corruption, subversive activities or 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."
' The above rule was subsequently amended on 28-6-1982 and after amendment, the rule is as follows:- "No pension may be granted to a WAPDA employee dismissed or removed for misconduct, corruption, subversive activities or inefficiency, or removed by order under section 17(1-A) of WAPDA Act, 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."
' The learned counsel for the appellant in support of appeal contended before us that the respondent was removed from service on 21-10-1982 after amendment in rule 7 (iv) of the Rules had come into force and as such he was not entitled to pensioner benefits to which an employee who normally retires or is removed from service of WAPDA, is entitled. The learned counsel for the respondent, on the other hand contended that at the time the respondent was appointed in WAPDA, he was entitled to normal pension under Rule 7(iv) of the Rules as it originally stood in case of removal or retirement under rule 7 (iv) and this vested right could not be taken away by the amendment of the said rule in 1982.
' Mr. Zamir Hussain, the learned counsel for the appellant has contended that section 17(1-A) of the Act has been held to be a term and condition of the service in the case of WAPDA v. Sikandar Ali Abro (1988 SCM R 137) and accordingly, the amendment made in section 17(1-A) applied even to the employees who had joined the service of WAPDA before the amendment of section (1-A) of the Act. On the same analogy, the learned counsel for the appellant contended that the amendment in rule 7(iv) of the Rules would also apply to an employee who had joined the service of WAPDA earlier but was removed from service after enforcement of the amended rule. On the above premises, the learned counsel also contended that there appears to be conflict in the ratio laid in the case of WAPDA v. Irtiqa Rasool Hashmi (1987 SCM R 359) and Sikandar Ali Abro's case, (supra), We have gone through the two cases referred by the learned counsel for the appellant and are of the view that there appears to be no conflict in so far ratio in the two cases is concerned. In the first mentioned case the question which arose directly for consideration before this Court was, whether the amendment made in Rule 7(iv) of the Rules applied to an employee who has been removed under section 17(1-A) of the Act, after the enforcement of amended rule. The observation of this Court in the case was as follows:- "It would, therefore, appear that before the purported amendment of rule 7 employees who were retired or removed under section 17(1-A) were entitled to all the pensioner benefits normally available to WAPDA employees. These benefits were denied only in the case of employees who were dismissed, or removed for misconduct, corruption, subversive activities or inefficiency. But by insertion of the words "or removed by order under section 17(1-A) of the WAPDA Act", even employee against whom no disciplinary action by way of punishment was taken were sought to be placed in the same category of persons not entitled to pensioner benefits. Before the Tribunal the contention of the WAPDA was that the 1982 amendment in rule 7 affected the case of the respondent (who was removed on 2nd June, 1977) because the amendment was made by adding the aforesaid words retrospectively. Reference in this connection was made to the words "ab initio".
The learned Service Tribunal rejected the contention of the WAPDA and rightly so on the ground that executive orders cannot be given retrospective operation which powers can only be enjoyed by the Legislature. Even rule-making power which is by way of statutory grant does not possess this quality unless conferred by the statute, which is of rare occurrence. Section 18 of the WAPDA Act, does not grant such authority to the WAPDA to alter or change the service rules touching the terms and conditions of employees with retrospective operation so as to rob them of vested rights already accrued in their favor.
4. We also agree with the findings of the learned Service Tribunal that office order, dated 25th July, 1979, reproduced above, has all the characteristics of statutory rules as postulated by this Court in Pakistan v. Sheikh Abdul Hamid PLD 1961 SC 105 and The Province of West Pakistan v. Din Muhammad and others PLD 1964 SC 21. In any case it aids in the interpretation of the existing rule before its amendment as a contemporaneous interpretation of the rule and practice at an authoritative level.
5. Learned counsel for the appellant only repeated his argument that the language of the amending notification, dated 28th June, 1982, is sufficient to give retrospective operation to the amendment excluding the benefit of pension in the case of respondent No, 1 . However, for reasons already given this is an untenable argument and is accordingly repelled. We are clearly of the opinion that by virtue of all existing rules respondent No,1 on his removal from service under section 17(1-A) of the WAPDA Act in 1977, acquired a vested right to the pensionary benefits of which he could not be deprived by a subsequent notification issued by the WAPDA."
' In Sikandar Ali Abro's case (supra), the question for consideration before this Court was, whether on account of amendment in the language of section 17(1-A) of the Act, the direction of the Authority to remove an employee without disclosing any reason for his removal has been taken away or not. The controversy raised in that case was answered as follows:-- "In our view through it did not take away the discretion of the Authority completely to remove its employee, but it did have the effect of curtailing such discretion. Under section 17(1-A) of the Act as it originally stood, the Authority could remove an employee without disclosing the reasons for such removal by just giving the concerned employee either 30 days' notice or pay in lieu thereof.
However, under the amended section 17(1-A), the Authority now cannot remove an employee without first informing him the grounds on which action for his removal from service is being taken and allowing him an opportunity of showing cause in writing against the proposed action. This change in the procedure for removal of an employee under section 17(1-A) of the Act, in our view, is intended to remove the taint of arbitrariness, if any, in such action. This, however, does not mean that the insertion available to Authority under section 17(1-A) to dispense with the services of an employee has been taken away by the Amendment of 1994. The amendment introduced in section 17(1-A) by Act XII of 1994 has the effect of only circumscribing the discretion of the Authority by providing a different procedure for removal of employee from service. The contention of the respondents that after amendment in the language of section 17(1-A), a detailed enquiry is must in every case of removal of an employee from service under section 17(1-A) (ibid) does not appear to be correct. Similarly, the contention of respondents that where in the first instance the Authority elected to proceed under the Rules, it could not take action under section 17(1-A) of the Act, is devoid of force. The language of section 17(1-A), even after amendment, does not admit of any such construction. The underlying object of section 17(1-A) of the Act, even after its amendment by the Act XIII of 1994, remained unchanged and the Authority still has the discretion to dispense with the service of an employee through recourse to section 17(1-A) provided the removal did not carry with it any stigma and the procedure laid down in the section is strictly followed by the Authority.
The learned counsel for the respondents relied on Ghulam Hadi Baloch v. Collector of Customs (1987 SCM R 602) and Zarar Khan v. Government of Sindh and others (PLD 1980 SC 310), in support of their contention that where the Authority first chooses to proceed against its employee under the detailed procedure it could not subsequently change its mind and follows another procedure prescribed under the Rules. These cases are quite distinguishable. In both the above cited cases the proceedings were initiated under the Government Servants (Efficiency and Discipline) Rules, 1973. In the case before us, there was no legal bar for the Authority to have recourse to the provisions of section 17(1-A) of the Act, even where proceedings under the Rules were initiated in the first instance against an employee as held by this Court in WAPDA v. Muhammad Ali (supra).
10. From the preceding discussion, it follows that even after amendment in section 17(1-A) of the Act, Authority is competent to remove an employee from service through recourse to the provisions of section 17(1-A) of the Act provided the removal does not carry with it any stigma on the concerned employee and the grounds of removal are such that they could be determined within the ambit of procedure prescribed under section 17(1-A) of the Act. As a corollary, it follows that where the Authority intends to remove an employee on serious charges which required detailed enquiry to establish the same and it also carried stigma on the concerned employee the ' Authority' could not have recourse to the provisions of section 17(1-A) of the Act for removing such employee from service."
It is, therefore, 'quite clear that the controversies in the two cases referred by the learned counsel for the appellant were different. In the first mentioned case, the controversy related to the vested right of an employee which was attempted to be taken away by amendment in the Rules which changed the terms and conditions relating to pensioner benefits of an employee while in the second case, the point before this Court for consideration was, whether the discretion of the Authority under section 17(1-A) has been taken away on account of change in the procedure for removal of an employee under section 17(1-A) of the Act. To us, there appears to be no conflict between the ratio of the two cases. The present I B case, in our view, is fully covered by the decision of this Court in the case of WAPDA v. Irtiqa Rasool Hashmi (supra). No case for interference with the order of the Service Tribunal is made out. The appeal is, accordingly, dismissed. There will, however, be no. Order as to costs in the circumstances of the case.