' SAIDUZZAMAN SIDDIQUI, J.---The abovementioned fourteen civil appeals with the leave of this Court are filed against the judgments of learned Federal Service Tribunal, dated 11-3-1996, 21-7- 1996, 26-11-1996, 23-12-1996, 24-12-1996, 30-12-1996, 2-1-1997, 23-1-1997 and 20-6-1997. In all these appeals, except Appeal No,28 of 1997, the respondents who were the employees of Water and Power Development Authority (hereinafter to be referred as the Authority' only), were removed from service on various charges of embezzlement, misappropriation, causing financial loss to the Authority, negligence in duty, indiscipline or insubordination, by the Authority under the provisions of section 17 (1-A) of the Pakistan Water and Power Development, Authority Act, 1958 (hereinafter to be referred as 'the Act' only). The respondent No,1, in Civil Appeal No,28 of 1997 was, however, compulsorily retired from service on charges of negligence of duty and causing financial loss to the Authority (appellant). These cases came up for hearing before different benches of this Court on different dates and leave was granted in all these cases to determine the scope of section 17 (1- A) of the act especially after it was amended on 6-7-1994 by Act XIII of 1994.
2. The learned counsel for the appellant jointly raised the following contentions in support of the above appeals:--
(i) That under section 17 (1-A) of the Act the Authority has the discretion to dispense with the service of any employee of WAPDA and this right available to the Authority has not been affected in any manner by the change introduced in the language of section 17 (1-A) of the Act by Act XIII of 1994;
(ii) That the removal of an employee of WAPDA under section 17 (1-A) of the Act by the Authority, did not carry with it any stigma and as such recourse to Pakistan WAPDA Employees (Efficiency and Discipline) Rules, 1978, hereinafter to be referred as 'the Rules' only, was not necessary for such removal;
(iii) That the appeals before the learned Tribunal were barred by time and in spite of specific objection having been raised before the Tribunal in this behalf, the learned Tribunal failed to decide the same;
(iv) That all the respondents were served with a show-cause notice and were also allowed opportunity of sending representation to the Authority besides affording them right of personal hearing in the cases and as such the action taken against them under section 17 (1-A) of the Act, did not suffer from any infirmity; and
(v) That the Chairman alongwith another member of the Authority was competent to take any decision on behalf of the Authority in view of the provisions of section 7 of the Act which fixed the quorum for the meeting of the Authority as two only, consisting of Chairman and any other member.
3. The learned counsel for the respondents, in reply to the . Above contentions of the appellant, jointly argued:--
(i) That the action of Authority in removing some of the respondents from service while letting off others and inflicting lesser penalties was discriminatory as the allegations against all were identical;
(ii) That an employee of WAPDA could not be removed under section 17 (1-A) of the Act, without holding enquiry as provided under 'the Rules' if the allegations on which his removal was sought amounted to. Serious allegations and carried stigma;
(iii) That after the amendment of 1994, the scheme of section 17 (1-A) of the Act was changed and the procedure for removal of an employee under section 17 (1-A) (ibid), was brought at par with the disciplinary proceedings' under 'the Rules' and as such no action under section 17 (1-A) could be sustained without following the procedure prescribed under 'the Rules' ;
(iv) That the appeals filed by respondents before the Tribunal were within time as before preferring such appeals, the respondents were obliged to file appeal or representation to the Authority as held by this Court in the case of Gulbat Khan v. WAPDA (1992 SCM R 1789); and
(v) That the Service Tribunal having jurisdiction to condone the delay in filing the appeal, has exercised that discretion which will not be " ' interfered with by this Court unless the discretion is found to have been exercised arbitrarily and perversely.
' In order to appreciate the contentions of the parties in the true perspective, k is necessary to state here briefly the allegations against the respondents and action taken by the Authority in each case.
4. Civil Appeal No,28 of 1997 The respondent in this case at the relevant time was posted as Resident Engineer at T.P.S. Guddu.
The allegations against him in the show-cause notice served on him on 9-12-1994 was, that on account of his negligent attitude and mala fide intentions, excess payments were made to M/s. Al Sakhi Petroleum Service, Guddu, which resulted in huge financial loss to the Authority and proportionate responsibility of respondent in that behalf was fixed at Rs,5,01,920.51 by the Enquiry Committee. The respondent in, his reply to the show-cause notice dated 2-1-1995 denied the allegations and asked for a copy of enquiry report and reserved the right to file a detailed reply to the show-cause notice after receipt of enquiry report. The respondent was then served with another show-cause notice dated 20-4-1995, directing him to attend the office on 26-4-1995 at 9 a.m. For personal hearing in connection with misappropriation of Rs,3 millions by way of payment of P.O.L. To M/s. Al-Sakhi Petroleum, Guddu. The respondent was finally retired from service on 7-5- 1995 with 30 days' pay in lieu of notice period. The learned Service Tribunal in appeal filed by respondent, set aside the order of compulsory retirement and in spite of a finding that respondent was equally responsible alongwith personnel serving in supplies/Accounts Department, ordered his reinstatement in service with all back benefits.
Civil Appeal No,29 of 1997 ' The respondent in this appeal was serving as Locomotive Engine Driver ME Units 3 and 4 T.P.S. Guddu at the relevant time. He was served with a show-cause notice dated 8-12-1994, wherein he was charged in the same manner as the respondent in Civil Appeal No,28 of 1997: The proportionate liability of the respondent in the amount of loss which the Authority suffered on account of negligence and mala fide attitude of the respondent, was determined by the Enquiry Committee at Rs,3,85,710.17. In his reply to the show-cause notice, the respondent denied the allegation and took the plea that within his charter of duties, the question of any payment at the behest of respondent to Al-Sakhi Petroleum, Guddu, did not arise. The respondent at the same time also asked for copy of enquiry report holding him responsible for the losses caused to the Authority.
The Authority after granting personal hearing to respondent removed him from service on 17-7- 1995 with immediate effect, under section 17 (1-A) of the Act by giving pay for 30 days in lieu of notice. On appeal, the learned Service Tribunal came to the conclusion, that other persons who were equally involved in the fraud case with him were either exonerated or visited with lesser penalty, and therefore, the respondent who was an employee belonging to a lower grade was entitled to be treated leniently. The learned Tribunal, accordingly, modified the punishment of removal from service to that of stoppage of three increments without accumulative effect from 17- 7-1995 and ordered his reinstatement in service. The intervening period was directed to be treated as leave without pay. On the question of limitation, the learned Tribunal found the appeal as within time and condoned the delay.
Civil Appeals Nos.1123, 1124 and 1125 of 1997 ' The respondents in these appeals were served with show-cause notices containing identical allegations of embezzlement/misappropriation of public money amounting to. Rs,5,31,169 and deliberate .Concealment of cash vouchers worth Rs,26,24,865 to avoid further detection of fraud and misappropriation by each one of them. The respondents took similar pleas in defence in their respective replies and denied all allegations and asked for a copy of report holding them responsible for misapprorpiation/embezzlement and concealment. By office order dated 5-5-1996, which stated that after considering the reply submitted by respondents and hearing them in person, the Authority removed them from service on account of their involvement in embezzlement of public money amounting to Rs,5,31,169. On appeal the learned Service Tribunal found that the action taken by the Authority was not proper in view of denial of the charges by respondents, and the nature of charges which could not be established without holding regular enquiry. The learned Tribunal also came to the conclusion that in view of the change in the constitution of Authority after substitution of section 4 of the Act by Ordinance XLII of 1995, the decision could not be taken as per past practice without all the members associating in the meeting. The removal of respondents from service, in the above 3 cases was, accordingly, set aside by the learned Tribunal and cases were remanded to the authority for afresh decision in accordance with the law.
Civil Appeal No,439 of 1997 ' The respondent in this appeal was charged by the Authority with the allegations of having broken/open the lock of Quarter No,F/7 allocated to a Senior Clerk of WAPDA and taking over its illegal possession, carrying on immoral and nefarious activities in the said quarter, refusing to vacate the said quarter on being asked by the Chief Engineer (GSO), Islamabad and failure to comply with the transfer order and report for duty on the new place of posting, in the show-cause notice dated 12-11-1995, served on him. The respondent denied all allegations in his reply to the show-cause notice. The Authority, however, after considering his reply and giving him personal hearing removed him from service with immediate effect vide office order dated 4-6-1996. The learned Tribunal on appeal file by respondent against the above decision of the Authority, following its earlier decision in Service Appeals Nos.217, 218 and 223(L) of 1996, allowed the appeal filed by respondent and remanded the case to the Authority for a fresh decision in accordance with the law.
Civil Appeals Nos.440 and 441 of 1997 ' The respondents in these appeals were serving as Customer Services Officer and S.D.O.
Respectively, in Division-2, Islamabad, at the relevant time. In the show-cause notice dated 25-7- 1995, served on the respondent in Civil Appeal No,440 of 1997, the allegations were that he in connivance with respondent in Civil Appeal No,441 of 1997 revised an energy bill of an Industrial concern from Rs,1,41,062 to Rs,21,679 and thus caused loss of revenue to the authority amounting to Rs,1,19,383 which amounted to gross misconduct. Similarly, the respondent in C.A. No,441 of 1997, was served with a charge-sheet dated 13-12-1994, alongwith statement of allegations, and he was asked to reply to the allegations within 14 days. This was followed by the show-cause notice dated 25-7-1995, which stated that while posted as S.D.O., the respondent arranged issuance of a fraudulent credit note amounting to Rs,1,19,383 to an Industrial consumer in connivance with the respondent in Civil Appeal No,440 of 1997. He was also 'accused of managing reversal of energy meter and replacement of Kalamzoo Card and amending the forwarding list to correspond to fraudulent note which amounted to gross misconduct.
' Both the respondents denied the allegations but the Authority after considering their reply and affording them personal hearing, removed them from service. Both respondents challenged their removal from service before the learned Service Tribunal.
' One of the learned members of the Tribunal (Mr. Nasim Sabir Syed) in the case of respondent in Civil Appeal No,440 of 1997, came to the conclusion that the real culprit in the case was the respondent in Civil Appeal No,441 of 1997 and there. Being no proof of collusion between the two respondents, the penalty of removal from service imposed on respondent in Civil Appeal No,440 of 1997 was very harsh and accordingly, reduced the penalty of removal from service into stoppage of two increments for these years. However, in the case of respondent in Civil Appeal No,441 of 1997 this learned member came to the conclusion that he was rightly found guilty by the Authority and accordingly, rejected his appeal.
' The other learned member of the Tribunal (Mr. Muhammad Raza Khan), did not agree, with Mr. Nasim Sabir Syed, and following the ratio of the earlier judgment of the Tribunal in Service Appeals Nos.217, 218 and 323(L) of 1996, set aside the order of Authority in both, the cases and remanded the same for a fresh decision in accordance with the law. The third learned member of the Tribunal (Mr. Noor Muhammad Magsi) agreed with the opinion of Mr. Muhammad Raza Khan. As a result thereof, by majority opinion of the learned Tribunal, the cases stand remanded to Authority as aforesaid.
Civil Appeals Nos.90 and 91 of 1997 ' The respondents in these two appeals were initially served with the charge-sheet and statement of allegations dated 29-9-1993 wherein they were accused of humiliating and beating the S.D.O.
Muhammad Munir with shoes. After initiation of disciplinary proceedings against them on the basis of above charge-sheet, the respondents were served with a show-cause notice dated 24-10-1993, under section 17 (1-A) of the Act. In reply to the show-cause notice dated 24-10-1993, the respondents denied the allegations and asked for the copies of Enquiry Report and the statements of witnesses on the basis of which they were found guilty. They also pleaded that the criminal case registered against them on these allegations failed and they were acquitted. The Authority, after considering their defence and hearing them in person removed them from service under 'office order dated 6-4-1995. On appeal, the learned Tribunal came to the conclusion that the respondents were not associated with the enquiry on the basis of which they were found guilty of the charge of giving shoe beating to the S.D.O. And they were also not afforded opportunity to cross-examine the witnesses produced before the Enquiry Officer, which violated the principles of natural justice. On these considerations the order of the Authority removing the respondents from service was set aside, leaving it open to the Authority to either proceed against the respondents under the Rules or under section 17 (1-A) of the Act in accordance with the law.
Civil Appeal No,379 of 1997 ' The respondent in this appeal was a billing supervisor in the Office of R.O. Garden Town, Lahore. He was served with a notice under section 17 (1-A) of the Act wherein it was alleged that he reduced the energy bills of customers by making wrong entries, and thus, caused loss to the Authority to the tune of Rs,4,632,463. The respondent in his reply took up the plea that no loss was caused to the Authority as this amount was recovered through subsequent bills. The Authority after considering his reply and giving him a personal hearing removed him from service holding him involved in allowing bogus refund to customers to the tune of Rs,46,32,463. On appeal, the learned Tribunal did not go into the merits of the case and following the ratio of its earlier decisions in Service Appeals Nos.539(R), 217, 218 and 223(L) of 1996, set aside the order of the Authority to hold de novo proceedings against the respondent under the Rules instead of proceedings under section 17 (1-A) of the Act.
Civil Appeal No,1177 of 1997 ' The respondent in this appeal was removed by the Authority under section 17 (1-A) of the Act by order dated 25-7-1996, on the charges that during his tenure as Deputy Director (Administration), he made 132 appointments during the subsistence of a ban on fresh appointments by the Government, in violation of recruitment Rules. The respondent contested the above allegations and took the plea that he was neither the Selecting Authority nor the Appointing Authority and he simply issued appointment letters after the recommendations by Selection Committee. It was also alleged by the respondent that the fact that out of 132 appointees, 68 were approved for appointment by the Chief Engineer after their appointment, established that the appointments were made under the direction of Chief Engineer.
' The learned Tribunal while hearing the appeal field by respondent against his removal from service, took the view that summary procedure in the case, was adopted to save higher officers involved in the case of wholesale irregular appointments. The learned Tribunal also took the view that the decision to remove the respondent from service was not of the Authority as all of its members were not associated in the decision. On these considerations, the appeal was accepted, the order of removal of respondent from service passed by the Authority was set aside and the case was remanded for holding a regular enquiry in the case.
Civil Appeal Nos.535 and 537 of 1997 ' The respondents in the above appeals while serving as S.D.O. And sub-divisional clerk respectively, at Jhang, were served with identical show-cause notices under section 17 (1-A) of the Act on 3-8- 1995, alleging embezzlement/misappropriation of public money amounting to Rs,5,31,169 and deliberate concealment of cash vouchers worth Rs,26,24,865. They denied the above allegations but the Authority after considering their reply and granting them personal hearing removed them from service vide office order dated 5-5-1996. On appeal the learned Tribunal found that the charges were stereotype and all were charged with the same amount which was not possible in the circumstances of the case. In the final analysis, the learned Tribunal set aside the order of removal of respondents from service and remanded their cases for a fresh decision in accordance with the law.
5. From the facts stated above, it is quite clear that almost in all the above cases, the respondents have been removed from service on charges which carried with it stigma. The letters removing the respondents in Civil Appeals Nos.535, 537, 1123, 1124 and 1125 of 1997 from services are dated 5-5- 1996 and they read as follows:- "Annex-H 6366911/2259 0/0 G.M. (M&S) WAPDA, 731-WAPDA House, Lahore M & S/DD(REV)05008/160/6365-69, 5-5-1996 OFFICE ORDER ' After considering his defence reply dated 26-8-1995 to the show-cause notice issued vide Letter No,M&S/AD(REV) 05008/160/4311, dated 3-8-1995 and granting him personal hearing on 10-4-1996, the Authority in exercise of the powers conferred on it under section 17(1-A) of WAPDA Act, 1958, has decided to remove Mr. Liaqat Ali, S.D.O., Construction Sub-Division, T.T. Singh, WAPDA, from WAPDA service, with immediate effect on account of his involvement in embezzlement of public money amounting to Rupees 5,31,169 while posted as S.D.O., City Sub-Division, WAPDA, Jhang.
FOR & ON BEHALF OF THE AUTHORITY (Sd.)
(Hashmat Ali Kazmi), Director (Confidential)
' Mr. Liaqat Ali S.D.O., Construction Sub-Division, Toba Tek Singh, WAPDA, A . E. B . , Faisalabad.
C.C. To:
(1) Secretary WAPDA, WAPDA House,, Lahore w.r. To his U.O. No,S/AD (Coord) 03003/MTG/1383-1429, dated 25-4-1996.
(2) Chairman A.E.B. WAPDA, Faisalabad.
(3) Cheif Engineer (Admn) Power, WAPDA House, Lahore.
(4) General Manager Finance (Power), WAPDA, WAPDA House, Lahore."
Civil Appeal No,537 of 1997 Annex-B 6366911/2259 0/0 G.M. (M&S) WAPDA, 731-WAPDA House, Lahore M & S/AD(REV)05008/160/6390-94 5-5-1996 OFFICE ORDER ' After considering his defence reply dated 26-8-1995 to the show-cause notice issued vide Letter No,M&S/AD(REV) 05008/160/4413, dated 3-8-1995 and granting him personal hearing on 10-4-1996, the Authority in exercise of the powers conferred on it under section 17 (1-A) of WAPDA Act, 1958, has decided to remove Mr. Mukhtar Ahmad, S.D.C., Circle Office, Jhang from WAPDA service, with immediate effect on account of his involvement in embezzlement of public money amounting to Rupees 5,31,169 while posted as Divisional Accountant, Jhang Division, WAPDA, Jhang.
FOR & ON BEHALF OF THE AUTHORITY (Sd.)
(Hashmat Ali Kazmi), Director (Confidential).
' Mr. Mukhtar Ahmad, S.D.C., Circle Office, WAPDA, Jhang, A.E.B., Faisalabad. c.c. To:
(1) Secretary WAPDA, WAPDA House, Lahore w.r to his U.O. No,S/AD (Coord) 03003/MTG/1393-1429, dated 25-4-1996.
(2) Chairman, A.E.B. WAPDA, Faisalabad.
(3) Chief Engineer (Admn.) Power, WAPDA House, Lahore.
(4) General Manager, Finance (Power), WAPDA, WAPDA House, Lahore."
Civil Appeal No,1123 of 1997 "6366911/2259 WAPDA LAHORE. 0/0 GM l(M&S) WAPDA 731-WAPDA House, Lahore M & S/DD(REV)05008/160/6370-74 5-5-1996 OFFICE ORDER ' After considering his defence reply dated 14-9-1995 to the show-cause notice issued vide Letter No,M&S/AD(REV) 05008/160/4312, dated 5-8-1995 and granting him personal hearing on 10-4-1996, the Authority in exercise of the powers conferred on it under section 17 (1-A) of Wapda Act, 1958, has decided to remove Mr. Ali Akbar, Division Accountant, Office of R.O. (Power) WAPDA Gojra from WAPDA service, with immediate effect on account of his involyement in embezzlement of public money amounting to Rs,5,31,169 while posted as Divisional Accountant, Jhang Division, WAPDA, Jhang.
FOR & ON BEHALF OF THE AUTHORITY Mr. Ali Akbar, Divisional Accountant, 0/0 Revenue Officer (Power), WAPDA, Gojra, A.E.B. Faisalabad.
(Sd.)
(Hashmat Ali Kazmi), Director (Confidential).
C.C. To:
(1) Secretary WAPDA, WAPDA House, Lahore w.r. To his U.O. No,8/AD (Coord) 03003/MTG/1383-1429, dated 25-4-1996.
(2) Chairman, A.E.B. WAPDA, Faisalabad.
(3) Cheif Engineer, (Admn.) Power, WAPDA House, Lahore.
(4) General Manager, Finance (Power) WAPDA, WAPDA House, Lahore."
Civil Appeal No,1124 of 1997 "Pakistan Water and Power Development Authority 6366911/2259 0/0 GM(M&S) WAPDA WAPDA, LAHORE. 731-WAPDA House, Lahore M&S/DD(REV)05008/160/6385-89 5-5-1996 OFFICE ORDER ' After considering his defence reply dated 23-8-1995 to the show-cause notice issued vide Letter No,M&S/AD(REV) 05008/160/4316, dated 3-8-1995 and granting him personal hearing on 18-4-1996, the Authority in exercise of the powers conferred on it under section 17 (1-A) of WAPDA Act, 1958, has decided to remove Mr. Muhammad Yusaf S.D.C., Shah Jewna, Sub-Division, from WAPDA service, with immediate effect on account of his involvement in embezzlement of public money amounting to Rs,5,31,169 while posted as S.D.C., Saddar Sub-Division, Jhang.
FOR & ON BEHALF OF THE AUTHORITY ' Mr. Muhammad Yousar S.D.C., Shah Jewna Sub-Division, A.E.B. WAPDA, Faisalabad.
(Sd).
(Hashmat Ali Kazmi), Director (Confidential).
C.C. TO:
1. Secretary WAPDA, WAPDA House, Lahore w.r. To his U.O. No,S/AD(Coord)03003/MTG/1383-1429 dated 25-4-1996.
2. Chairman A.E.B., WAPDA, Faisalabad.
3. Chief Engineer (Admn,) Power, WAPDA House, Lahore.
4. General Manager Finance (Power), WAPDA House, Lahore."
Civil Appeal 1125 of 1997 "Annex-C M&S/DD(kev)05008/160 /6380-84 0/0 G.M. (M&S) WAPDA, 731 -WAPDA House, Lahore Dated 5-5-1996 OFFICE ORDER ' After considering his defence reply dated Nil to the show-cause notice issued vide Letter No,M&S/AD(REV)05008/160/4314, dated 3-6-1995 and granting him personal hearing on 10-4-1996, the Authority in exercise of the powers conferred on it under section 17(1-A) of WAPDA Act, 1958, has decided to remove Mr. Asif Muzaffar, Accounts Clerk, Chiniot Division, WAPDA, from WAPDA service, with immediate effect on account of his involvement in embezzlement of public money amounting to Rs,5,31,169 while posted as Accounts Clerk, Jhang Division, WAPDA, Jhang.
FOR & ON BEHALF OF THE AUTHORITY.
(Sd.)
(Hashat Ali Kazi), Director (Confidential).
Asif Muzaffar, Accounts Clerk Chiniot Division, WAPDA, A.E.B., Faisalabad.
C.C. To :
1. Secretary WAPDA, WAPDA House, Lahore w.r. To his U.O. No,S/AD(Coord)03-03-Mug/1389-1429, dated 25-3-1996.
2. Chairman AEB, WAPDA, Faisalabad.
3. Chief Engineer (Admn), WAPDA House, Lahore
4. General Manager Finance (Power) WAPDA, WAPDA House, Lahore Similarly, the letter dated 24-4-1996 served on the respondents in Civil Appeal Nos.440 and 441 of 1997 removing them from service are also identical and read as follows:-- "6366911/2259 0/0 GM(M&S) WAPDA, WAPDA, LAHORE 731-WAPDA House, Lahore M&S/DD(C)05002/1702/6337-41, 24-4-1996.
OFFICE ORDER ' After considering his defence reply dated 22-8-1995 to the show-cause notice issued vide Letter No,M&S/AD(REV)05002/1702/4136, dated 25-7-1995 and granting him personal hearing on 10-4- 1996, the Authority in exercise of powers conferred on it under section 17(1-A) of WAPDA Act, 1958, has decided to remove Mr. Abdul Rashid, Customer Services Officer, Division No,II, WAPDA, Islamabad from WAPDA service, with immediate effect on account of his mala fide involvement in allowing fraudulent credit amounting to Rs,1,19,383 to M/s. Arif Bashir Cold Storage, Islamabad.
FOR & ON BEHALF OF AUTHORITY Mr. Abdur Rashid, Customer Services Officer, (Sd.)
Division No,II, (Hashmat Ali Kazmi), WAPDA, Islamabad, Director (Confidential). c.c. To:
(1) Secretary, WAPDA, WAPDA House, Lahore w.r. To his U.O. No,S/AD/(Coord)/MTG 1256-93, dated 16-4-1996.
(2) Chairman, A.E.B., WAPDA, Islamabad
(3) Chief Engineer (Admn.) Power, WAPDA, WAPDA House, Lahore.
(4) General Manager, Finance (Power), .WAPDA, WAPDA House, Lahore."
Civil Appeal No,441 of 1997 "6366911/2259 0/0 GM(M&S) WAPDA, WAPDA LAHORE 731-WAPDA House, Lahore M&S/DD(C)05002/1702/6332-36 24-4-1996.
OFFICE ORDER ' After considering his defence reply dated 26-8-1995 to the show-cause notice issued vide Letter No,M&S/AD(REV)05002/1702/4135, dated 25-7-1995 and granting him personal hearing on 10-4- 1996, the Authority in exercise of powers conferred on it under section 17(1-A) of WAPDA Act, 1958, has decided to remove Mr. Hameedullah, S.D.O. 1/9, Sub-Division, WAPDA, Islamabad from WAPDA service, with immediate effect on account of his mala fide involvement in allowing fraudulent credit amounting to Rs,1,19,383 to M/s. Arif Bashir Cold Storage, Islamabad.
FOR & ON BEHALF OF AUTHORITY Mr. Hameed Ullah, SDO 1/9 Sub-Division, (Sd.)
(under suspension), (Hashmat Ali Kazmi), WAPDA, Islamabad. Director (Confidential). c.c. To:
(1) Secretary WAPDA, WAPDA House, Lahore w.r. To his U.O. No,S/AD/(Coord)03003/MTG/1256-93, dated 16-4-1996.
(2) Chairman A.E.B., WAPDA, Islamabad.
(3) Chief Engineer (Admn.), Power, WAPDA, WAPDA House, Lahore.
(4) General Manager, Finance (Power), WAPDA, WAPDA House, Lahore."
' In the same manner, the letter dated 24-4-1996, 25-7-1996 and 4-6-1996 served on respondents in Civil Appeals Nos.379, 1177 and 439 of 1997 respectively read as follows:-- Civil Appeal No,379 of 1997 0/0 GM(M&S) WAPDA, CA. 379/97 731-WAPDA House, Lahore.
"M&S/AD(REV)05008/187/6343-47 24-4-1996.
OFFICE ORDER ' After considering his defence reply dated 6-6-1995 to the show-cause notice issued vide Letter No,M&S/AD(REV)05008/187/327, dated 14-3-1995 and granting him personal hearing on 10-4-1996, the Authority in exercise of powers conferred on it under section 17(1-A) of WAPDA Act, 1958, has decided to remove Mr. Muhammad Aslam, Assistant, R.O. Baghbanpura Division, WAPDA, Lahore from WAPDA service, with immediate effect on account of his involvement in allowing bogus refund to the tune of Rs,46,32,463 to the consumers, while posted as Billing Supervisor in Revenue Office, Garden Town Division, Lahore.
FOR & ON BEHALF OF AUTHORITY Mr. Muhammad Aslam, Billing Supervisor, Now Assistant, R.O. Baghbanpura Division, WAPDA, Lahore (Sd.)
(Hashmat Ali Kazmi) Director (Confidential). c.c. To:
(1) Secretary WAPDA, WAPDA House, Lahore w.r. To his U.O. No,S/AD/(Coord)/MTG/1256-93, dated 16-4-1996.
(2) Chairman, A.E.B., WAPDA, Lahore.
(3) Chief Engineer (Admn ) Power, WAPDA, WAPDA House, Lahore.
(4) General Manager, Finance (Power), WAPDA, WAPDA House, Lahore."
Civil Appeal No,1177 of 1997 "Pakistan Water and Power Development Authority "63669911/2259 0/0 GM(M&S) WAPDA, WAPDA, LAHORE 731-WAPDA House, Lahore M&S/DD(C)05001/869/6871-76 Dated 25-7-1996.
OFFICE ORDER ' After considering his defence reply to the show-cause notice issued to him under section 17 (1-A) of WAPDA Act vide Letter No,M&S/DD(C)05001/869/6194, dated 4-4-1996, and granting personal hearing on 18-7-1996, the Authority has decided to remove Mr. Abdul Ghani Chandio, Deputy Director (Admn) presently attached with Director (Career Management) Finance S&GA, WAPDA, WAPDA House, Lahore from service, under section 17(1-A) of WAPDA Act, with immediate effect on account of gross misconduct i.e, unauthorised induction of personnel, under General Manager (Water) South, while posted there as Deputy Director (Admn) against Wapda employees children quota, sports quota and even direct quota against which induction was completely banned by the Government as well as WAPDA.
BY THE ORDERS OF THE AUTHORITIES Mr. Abdul Ghani Chandio, Deputy Director (Admn.), (Sd.)
0/0 Dir (C.M.) Finance (Hashmat All Kazmi), S&GA WAPDA. Director (Confidential). c.c. To:
(1) General Manager (Admn.), WAPDA, WAPDA House, Lahore.
(2) General Manager (Water), South, WAPDA, Hyderabad.
(3) General Manager (Finance), Coord, WAPDA, WAPDA House, Lahore.
(4) Director (Career Management) Finance, S&GA WAPDA House, Lahore.
(5) Secretary WAPDA, WAPDA House, Lahore w.r. To his U.O. No,AD/(Coord)03003/MTG/2346-81, dated 25th July, 1996."
' Civil Appeal No,439 of 1997 "Pakistan Water and Power Development Authority "6366911/2731 0/0 GM(M&S) WAPDA, WAPDA, LAHORE 744-WAPDA House, Lahore.
M&S/DD(C)05002/1762/6493-98, 24-4-1996.
OFFICE ORDER ' After considering defence reply dated 26-11-1995 to the show-cause notice issued vide Letter No,M&S/DIR(C)/DD(C)05002/1762/95/ 5277, dated 12-11-1995 and granting him personal hearing on 28-3-1996, the Authority in its meeting held on 16-5-1996 has decided to remove Mr. Muhammad Qasim Jan, Assistant Director (Adm.) Office of Chief Engineer (Hydel) Warsak, under the provisions of section 17(1-A) of WAPDA Act, 1958, from WAPDA service with immediate effect on account of his involvement in immoral and nefarious activities in Quarter No,F/7 in I/10, Grid Station Islamabad, illegally occupied by him and insubordination for not complying with lawful orders of the competent authorities for vacation of quarter and not reporting for duty at new place of posting (till 16-11-1995) after having been relieved from the office of Chief Engineer (GSO) WAPDA, Islamabad on 22-8-1995 (A.N.).
FOR & ON BEHALF OF THE AUTHORITY Mr. Muhammad Qasim Jan, Assistant Director (Admn.) WAPDA, (Sd.)
Street No,6, Shaheen Town, (Farid Khan), P.O. Thekal Dala, Peshawar, Deputy Director (Confidential). c . c . To:
(1) General Manager (Admn.) WAPDA, Lahore w.r. To his No, DG(S&GA)/AD(E. IB) 1 ( 1 603 )PF /317, dated 16-8-1995 .
(2) General Manager, Finance (Power), WAPDA, WAPDA House, Lahore.
(3) Chief Engineer (GSO), WAPDA, Islamabad.
(4) Chief Engineer (Hydel), North, WAPDA, Warsak.
(5) Director (CM), Finance & S&GA, WAPDA, WAPDA House, Lahore."
' However, in the letters served on respondents in Civil Appeals Nos.90, 91, 28 and 29 of 1997, removing them from service, no allegations were mentioned, but in the show-cause notices which preceded the removal letters, each one of the respondents was specifically charged with allegations which carried stigma.
6. The first question which arises for consideration in these appeals is, whether on account of changes brought about in the language of section 17 (1-A) of the Act, through Act XIII of 1994, the scheme of the section has also changed or not? In order to understand and appreciate correctly the effect of change in the language of section 17 (1-A) it is necessary to examine side by side the original and the amended section 17 (1-A) of the Act which are as follows:-- ' Original section 17 (1-A): "(1-A) 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 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.'
Amended section 17 (1-A): "(1-A) 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 may, at any time 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."
7. The scope of original section 17 (1-A) of the Act came up for consideration before this Court in a number of decisions and it will be advantageous to discuss here the ratio decidendi of these cases briefly to understand its true import.
' In the case of Pakistan WAPDA v. Ahmad Nawaz (1986 SCM R 571), the respondent was initially charge-sheeted for misconduct and suspended. However, before disciplinary proceedings could take off, he was removed from service with immediate effect under section 17 (1-A) of the Act by the Authority without assigning any reason. On appeal filed by the respondent before the Service Tribunal, the order of his removal from service was set aside and the Authority was directed to proceed against the respondent in accordance with E&D Rules, 1978 and further action was directed to be taken in accordance with the result of disciplinary proceedings. It was contended before this Court on behalf of WAPDA in the appeal filed against the order of learned Service Tribunal that removal from service under section 17(1-A) of the Act was not a punishment, and therefore, no reason was required to be stated for removal of the concerned employee. It was also argued that it was not necessary to go ahead with the disciplinary proceedings started against any employee if the Authority later changed its mind to remove him under .Section 17(1-A) of the Act. This Court accepted the contention raised on behalf of the Authority as follows:-- "We find that the submissions of the learned counsel for the appellant have weight. The language of the statute conferring power on the Authority under section 17(1-A) makes it a term and condition of the employment itself. It is not in the nature of punishment and is not to be preceded by a show-cause notice or by the conclusive proof of material taken against the employee. It is also not correct in view of the law laid down by this Court in Abdul Karim v. The West Pakistan PLD 1956 SC (Pak.) 298 that where two powers are concurrently available any one of them can be used notwithstanding that initially it was intended or action had been initiated under the other power.
There is no question of the evidence being conclusive or beyond reasonable doubt before authorising the Authority to take action under section 17(1-A). The language of the statute is clear. It admits of no ambiguity. Like all statutory powers the limitation of its being bona fide and for the purposes of the Act has to be read in the power itself. In that view of the matter none of the grounds on which the judgment of Tribunal is based is tenable. We set aside the judgment."
' In the case of WAPDA v. Amjad Hadayat Butt (1986 SCM R 582), the Authority constituted an Enquiry Committee to determine the proportionate responsibility of some 87 officials of WAPDA in the losses suffered by it to the tune of Rs,90,62,862 for various acts of commission and omission of these officials. The Committee recommended action .Against some officials under section 17(1-A) of the Act while against others action it recommended proceedings under E & D Rules. The officials who were removed from service under section 17)(1-A) of the Act challenged their removal from service before the Service Tribunal as mala fide and discriminatory. The learned Service Tribunal found the action of Authority in respect of five respondents in those cases was discriminatory as the Authority treated the different officers of the Authority differently although all were involved in misconduct. It was also observed by the learned Service Tribunal in that ease that the Authority while accepted the recommendations of Enquiry Committee against the five respondents under section 17(1-A) of the Act but did not act on the recommendations of the Committee in respect of 18 other officers of the Authority for proceedings under E & D Rules. The learned Service Tribunal accordingly, ordered reinstatement of respondents in that case in service with all the consequential benefits, after setting aside their removal from service under section 17(1-A) of the Act. The decision of learned Service Tribunal was challenged before this Court in petitions for leave to appeal which were accepted after converting them into appeal, as follows:-- "The Tribunal, in the said case, based its decision mainly on the hypothesis that the cases of all the persons who were scrutinised by the Enquiry Committee stood on the same footing and that WAPDA was guilty of according different treatment to the different officers who were all involved in the alleged misconduct and that it had, thereby, been guilty of unfair discrimination. Hence, its order, in so far as the three respondents are concerned, was arbitrary and mala fide.
' We regret that we cannot subscribe to this approach of the Tribunal. No basis was laid by it for asserting that the cases of all the officers, whose conduct was being inquired into by the Enquiry Committee, were identical. Unless the identity of interest and conduct of all the officers is established, the mere fact that a particular kind of action has been recommended against some of them and another type of action recommended against others, cannot make the action ordered as unjustified discrimination. So far as the order being mala fide is concerned, this Court has recently ruled in the case of Fauji Foundation and another v. Shamimur Rehman PLD 1983 SC 457 at page 567 that mala fides has to be specifically pleaded and legal proof adduced to establish it no finding of mala fides can be recorded merely on the basis of surmises, assumptions and bare allegations. The essential requirements to establish mala fides were singularly lacking and had clearly not been established by the respondents in Civil Appeals Nos.805, 806 and 808 of 1984.
' Mr. Abid Hassan Minto, learned counsel for the respondents in the above appeals, however, argued that the said respondents had raised a large number of other issues in their appeals but the Tribunal had not adverted to them on its finding that the action taken against the respondents .Was vitiated on account of arbitrariness and mala fides. He submitted that the respondents were entitled to get their orders of retirement set aside on the basis of other pleas taken by them in their appeals, which were not decided by the Tribunal on account of the view, it itself took, in these cases.
' We have gone through the memorandums of appeals submitted by the respondents and agree that there were other pleas raised by them which needed consideration and have not been decided. In these circumstances, the order of the Service Tribunal, dated 9-6-1984 in Civil Appeals Nos.805, 806 and 808 of 1984 are set aside and their cases remanded back to the Service Tribunal, for decision of these appeals afresh in the light of the other pleas raised by them."
' In the case of WAPDA v. Saeed Ahmed (1986 SCM R 725), once again the scope of exercise of power by the Authority in removing its employee under section 17(1-A) of the Act came up for consideration before this Court and these were the observations in this behalf:- "We have in Civil Appeals 170-173 of 1983, decided on 6-12-1985 (reported as 1986 SCM R 18) upheld on the basis of decision in M. Yasim Qureshi v. Islamic Republic of Pakistan PLD 1980 SC 22 the Tribunal's powers to confirm, set aside, vary or modify the orders impugned before it and have conceded to it the powers of varying the order of removal and converting it into one of retirement.
Similarly, it cannot be said that every case of irregularity committed by an employee must be followed by a departmental 'inquiry under the Efficiency and Discipline Rules and action under section 17(1-A) is not permissible. Actually, it has been held that such an action is permissible even where departmental inquiry has been started Abdul Karim v. The West Pakistan Province PLD 1956 SC (Pak.) 298. The only ground on which such an order could be challenged was of mala fide and coram non judice. The ground of mala fide was in fact raised in the appeal before the Tribunal but certainly not in the manner provided in rule 6(2) of Service Tribunals (Procedure) Rules, 1974 which required full disclosure of facts with supporting material summarised and on affidavit."
' In the case WAPDA v. Shah Imroz (1986 SCM R 840), this Court repelled the contention on behalf of WAPDA that the Service Tribunal could not question the action of the Authority taken under section 17(1-A) of the Act, as follows:-- "In support of this appeal before us, it was contended that the Service Tribunal had no jurisdiction to question an order passed by WAPDA under the powers conferred upon it by section 17(1-A) of the WAPDA Act and that in any case the Service Tribunal could not have substituted its own discretion for that of the Authority and to have set aside the orders of removal from service and substituted it with the order of reinstatement.
' Both these pleas are without force. This Court has already held in WAPDA and another v.
Muhammad Arshad Qureshi 1986 SCM R 18 that the Service Tribunal has the jurisdiction to hear and entertain appeals with regard to terms and conditions of the WAPDA employees including appeals against its orders with regard to these matters passed under section 17(1-A) and can set aside orders passed by the Authority under this provisions which are male fide, tainted with bias and not passed bona fide. In this case the Tribunal, after examining all the relevant facts, came to the conclusion that the impugned order of the Authority was arbitrary. Hence it was not passed bona fide. Consequently, in view of the rule laid down by this Court in the case of Muhammad Arshad Qureshi, noted above, the Service Tribunal was not precluded from setting aside the order of removal passed by the Authority and substituting it with the order of reinstatement."
' In WAPDA v. Muhammad Ali (1986 SCM R 261) it was argued before this Court that the Authority having once decided to initiate disciplinary proceeding against a delinquent employee under E & D Rules, could not resort to power under section 17(1-A) of the Act. The argument was repealed as follows:-- "4. It is difficult to support the reasoning of the learned Tribunal that after it had initiated departmental proceedings against the respondent it was not open to the appellant authority to take resort to its power under section 17(1-A) of the WAPDA Act.. If the taw provides the appellant authority with two different modes for terminating the services of its employees the mere fact that it has, to begin with elected to act under one mode would not in the absence of a bar in the law preclude it from adopting the second mode at a later stage. Perhaps the attention of the learned Tribunal was not drawn to a decision of this Court reported as Abdul Karim v. West Pakistan Province PLD 1956 SC 298 wherein under somewhat similar circumstances the order of termination of services of Government servant in accordance with the terms of his employment was upheld notwithstanding the fact that a departmental inquiry was pending against him. The decision in this case was followed by this Court in another case reported as Secretary East Pakistan Industrial Development Corporation v. Mir Muhammad Siraj 1970 SCM R 398. This being the legal position the learned Tribunal clearly went wrong when it held that once the departmental proceedings had been started by the appellant authority against the respondent these had to be taken a logical conclusion and that subsequently it could not invoke its powers under section 17(1-A) of the WAPDA Act to determine the services of the respondent. The view taken by the learned Tribunal detracts from the power which the legislature has expressly conferred on the appellant authority, without any warranty.
5. We are also not impressed with the argument that the circumstances in which the respondent has been removed from service would attach a stigma to him. The allegations made against him have not been established as the Inquiry Officer had yet to record his findings thereon before he was removed from service. The order of removal did not assign any reason at all and it was a case of termination simplicitor of the services. There was no question of the respondent's reputation being in any way clouded by such an order."
' The view that the order passed by the Authority under section 17(1-A) of the Act if not bona fide, tainted with bias or mala fide could be interfered with by the Tribunal was stated in these terms in the case of WAPDA v. Zulfiqar Ali (PLD 1988 SC 693):-- "In the case of Shah Imroz it was held that when the order under section 17(1-A) passed by the Departmental Authority is mala fide and tainted with bias and thus, not passed bona fide, it would be within the power of the Tribunal to set aside the order of removal and substitute it with the order of reinstatement. This was thus treated as a very strong case for mitigation also. In the other case of Firdaus Khan the mitigation (given the other requisites regarding mala fides, etc.) was not that strong, therefore, the alteration of removal to compulsory retirement (instead of reinstatement) was treated as the proper penalty. Thus, in order to remove the taint of arbitrariness from the orders of the Tribunal itself, it is essential that in such-like cases, alteration of penalty should take place only after giving a finding of arbitrariness on question of penalty on the part of the WAPDA Authority. In this context when the authority orders removal, in a case of bribe; while upholding the finding of guilty, it might look odd for the appeal forum, to retire with all pensionary benefits, or to reinstate with the reward of the benefits of past emoluments. These observations are essential to illustrate the point and not to be read as direction in the present cases. The Tribunal shall be at liberty to support its view with cogent reasons so as to remove the criticism of arbitrariness; or if no such cogent reasons are available, to change the view itself."
' In the case of Aijaz Nabi Abbasi v. WAPDA (1992 SCM R 774), this Court after referring to some of the above, noted cases and several other reported decisions of this Court, reiterated the scope of exercise of power by the Authority under section 17(1-A) of the Act as follows:-- "11. 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 tide 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."
8. From the preceding discussion, it follows that this Court while interpreting the provision of unamended section 17(1-A) of the Act reached the following conclusions:--
(i) That the provisions of section 17(1-A) in the nature of a terms and condition 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 reasons 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 fides.
9. We now proceed to consider whether on account of change in the language of section 17(1-A) of the Act introduced by Act XIII of 1994, the scope and scheme of section 17(1-A) (ibid), has been changed so that the above interpretation of the provision of section 17(1-A) has become inapplicable. We have already reproduced earlier in this judgment the original text of section 17(1- A) as well as its provisions as they now stand after the amendment of 1994. The insertion of the words "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" in place of "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 our view though 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 discretion 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 XIII 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 follow 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, the 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.
11. In almost all the above appeals, the allegations against the respondents were of serious nature which if established would carry stigma against them. All the respondents vehemently denied the allegations levelled against them. In the absence of proof of these allegations, the respondents could not be removed from service. The learned Service Tribunal also found that the charges were framed against the respondents in the above cases on the basis of an enquiry report wherein the respondents were not associated. The respondents were also not supplied the copy of enquiry report. It has also come on record that the enquiry report, on the basis of which the respondents were charged, was based on the statements of witnesses who were examined behind the back of respondents and no opportunity was given to the respondents to cross-examine these witnesses.
In these circumstances, the removal of respondents from service on the basis of consideration of their written reply and personal hearing could not be held to be a valid exercise of power by the Authority under section 17(1-A) of the Act and accordingly, no exception could be taken to the remand of these cases to the Authority for a fresh disposal in accordance with the law. We have, however, found that the learned Tribunal made an exception in the case of respondent in Civil Appeal No,28 of 1997. The respondent in Civil Appeal No,28 of 1997 was found equally responsible for the charges alongwith the personnel of supplies/Accounts Department by he learned Tribunal but instead of remanding his case also to the Authority, the learned Tribunal directed his reinstatement in service with all back benefits. We have not been able to discover any cogent reason for making this exception in the case of respondent No, Civil Appeal No,28 of 1997.
12. The next contention of the learned counsel for the appellant in the above Appeals is that Appeals Nos.535, 537, 1123, 1124, 1125, 379, 90 and 91 of 1997 were time-barred, but except in Civil Appeals Nos.90 and 91 of 1997 in no other case, the learned Tribunal attended to the question of limitation raised in these appeals.
' In Civil Appeals Nos. 90 and 91 of 1997, the learned Tribunal held that although these two appeals were barred by limitation but the explanation furnished by the respondents for condonation of delay was satisfactory and accordingly the delay in filing the appeals was condoned. The reasons given by the respondents for seeking condonation of delay in filing the appeals was that they were prosecuting the cases in good faith before the N.I.R.C. Under section 22(A) (8) (g) read with section 22-B (b) (3) of the I.R.O. These respondents also filed application under Regulation 32 of the N.I.R.C.
(Procedure and Function) Regulations, 1973. It is not disputed that these cases remained pending with the Commission and certain orders were passed setting aside the order of removal of respondents from service. The respondents also, after failure of proceedings before N.I.R.C.
Preferred writ petition before the High Court. The learned Tribunal considered these proceedings by the respondents bona fide and accordingly, condoned the delay in filing the appeals. It cannot be disputed that the learned Tribunal had the discretion to condone the delay under section 5 of the Limitation Act in filing the appeal before it. The circumstances. Taken into consideration by the learned Tribunal in condoning the delay were not totally irrelevant. The .Discretion having been exercised by an authority which is vested with such discretion, cannot be interfered with by this Court unless the exercise of discretion was arbitrary or perverse. We do not find any arbitrariness or perversity in the exercise of discretion by the Tribunal in condoning the delay in these two appeals.
In the remaining appeals, the contention of the learned counsel for the appellants before us is that the appeals before the learned Tribunal were time-barred as against the action of the Authority removing the respondents from service, no revision or appeal could be filed. It appears that all these appeals were treated by the learned Tribunal as within time as the respondents after having been removed from service under section 17(1-A) of the. Act preferred a representation against their removal and having failed to receive any reply in response to their representation, preferred appeal within 90 days before the learned Tribunal. The contention of the learned counsel for the appellant in these cases is that as there was no appeal, revision or representation was provided against the order of removal under the Rules the representation filed by the respondents against their removal was misconceived, and therefore, they were not entitled to any extension of the period of limitation on account of filing of such misconceived proceedings. A similar contention was considered by a Full Bench consisting of the then Chief Justice and two learned Judges of this Court in the case reported as Gulbat Khan v. WAPDA (1992 SCM R 1789), but the contention was repelled as follows:-- "3. The fate of this appeal depends on the question as to whether or not any appeal or other remedy before the Authority against the removal order was available to the appellant, because it was only when such a remedy could be availed of by him as a matter of right; that while filing an appeal before the Tribunal, the time spent on seeking remedy before the departmental authorities could be excluded. It will be seen that under section 17-B of the WAPDA. Act, every person holding a post under the Authority for the purposes of Service Tribunals Act, 1973, is to be deemed to be a civil servant. It was on the basis of this provision that the appeal against the order, dated 29-6-1987 was brought by the appellant before the Federal Service Tribunal. As observed earlier, the period of limitation for filing such an appeal is 30 days from the date of communication of the order to the civil servant concerned. We may observe that if any appeal, application for review or representation to a departmental authority is provided from the order passed against a civil servant, availing of such remedy by him is the condition precedent for filing an appeal before the Tribunal. Such appeal has to be filed, as laid down in section 4, after expiry of 90 days from the date on which the appeal, application for review or representation, as the case may be, was instituted before the Departmental Authorities. It is noteworthy that, where no right of appeal or review is provided under section 22 of the Civil Servants Act, 1973, the aggrieved civil servant can make a representation to the forum next above the Authority, which made the order. Admittedly, no appeal before the Departmental Authorities, against the order, dated 29-6-1987 was provided in law. The question is, could the appellant, who is a civil servant, for the purposes of Service Tribunals Act, make use of the provisions of section 22? This issue fell for determination before this Court in Civil Appeal No,281-K of 1986, and it was laid down:-- ' 'There can be two possible views on the controversy in issue, namely, the strict view which found favour with the Tribunal that as the appellant was deemed to be a civil servant by virtue of above clause (1-B) of section 17 of the Act for the purposes of the Service Tribunals Act, provision of subsection (2) of section 22 of Act of 1973 could not have been pressed into service and, secondly, the broader view can be that since the definition of civil servant given in clause (a) to section 2 of the Service Tribunals Act refers to the definition of civil servant provided for in Act of 1973, the provision of subsection (2) of section 22 of Act of 1973 can be pressed into service.'
' 'We are inclined to hold that the above broader view is more apt to the object of above subsection (1-B) of section 17 of the Act read with the definition of the expression 'service of Pakistan' given in Article 260 of the Constitution. The object of above subsection (1-B) was to make the remedy of appeal under the Service Tribunals Act available to the employees of WAPDA and to achieve the above objective, by fiction of law, they were made civil servants. Since a civil servant cannot file an appeal without exhausting the remedy of a departmental appeal or review or representation provided under the Act of 1973 (i.e, Civil Servants Act) by virtue of proviso (a) to subsection (1) of section 4 of the Service Tribunals Act, the appellant being a civil servant by fiction of law could not have filed an appeal before the Tribunal without exhausting the remedy of representation under subsection (2) of section 22 of Act of 1973.'
' The controversy, therefore, already stands resolved. The learned counsel for the Authority, however, contended that the appellant did not make any representation, but filed an appeal and that, too, before the Chairman of the Authority; despite the fact that order for his removal from service was made by the Authority itself. The submission thus was that, if section 22 was attracted, the appellant having failed to file any representation, could not lay hand on section 22 for extension of time.
4. We are not impressed by this argument. There was no bar in treating the appeal as a representation. We feel that the Chairman of the Authority, to whom the departmental appeal was submitted, in all fairness should have regarded it as a representation and passed on the same for disposal to the Authority next above him. The appellant could not be made to suffer for the failure of the Chairman of the Authority, in failing to do what he was expected to do. We would treat the appellant's appeal as a representation within the meaning of section 22 (ibid); as it was not decided one way or the other, after the expiry of 90 days, he justifiably preferred an appeal before the Tribunal on 27-10-1987. It was, thus, within time and the Tribunal fell in error to hold otherwise."
' We are in respectful agreement with the view expressed in the above case and, accordingly, hold that the learned Tribunal, rightly treated Appeals Nos.535, 537, 1123, 1124, 1125 and 379 within time.
13. The learned counsel for the appellant in the above appeals has also contended that the decision taken by the Chairman alongwith another Member of the Authority was valid in view of section 7 of the Act. The grievance of the learned counsel for the appellant in the above appeals is that firstly, the question of validity of the order passed by the Authority under section 17 (1-A) of the Act on the ground that the order was not passed by all the members of the Authority was not specifically raised in any appeal nor this point was argued at the time of hearing of the appeals.
Secondly, the contention of the learned counsel for the appellant is that in spite of reconstitution of Authority by substituting section 4 of the Act, no consequential amendment was made in section 7, whereunder the quorum provided for the meeting of the Authority remained unchanged, and therefore, the decision taken by the Chairman and one Member was valid and binding. This contention does not appears to have been raised specifically at the time of hearing of appeal as the learned Tribunal while disposing of this controversy did not refer to the arguments raised before us in this behalf. We would, however, refrain from expressing any opinion in this regard as these cases are being remanded and leave it open for the parties to raise the same during the course of remand proceedings, if so desired. The learned counsel for the respondents also contended that the action of the Authority was discriminatory as many other officials, who were charged alongwith the respondents in the above appeals as were either let off or were leniently treated. This argument also appears to have met the approval of the learned Tribunal in some of these cases. We have not been impressed by this argument of learned counsel for the respondents. No basis was laid before the learned Tribunal to prove that on identical allegations and circumstances different treatment was meted out to different persons. Merely, for the reason that different action was taken or recommended against the persons involved in the offence, does not make the action discriminatory unless identity of interest or conduct of all such persons is established. Subject to the above observations, the parties are free to raise this question during remand proceedings, if so available to them.
14. As a result of the above discussion, all the appeals, except Civil Appeal No,28 of 1997, are dismissed and order passed by the learned Tribunal remanding the cases to the Authority for a fresh disposal of the cases is maintained subject to the observations made above. Civil Appeal No,28 of 1997 is partly allowed and the order of learned Tribunal is modified to the extent that this case is also remanded to the Authority with the direction to hold a fresh enquiry in the case in the light of the observations made above. There will, however, be no order as to costs in the circumstances of the case.