MUHAMMAD RAZA KHAN (MEMBER).---By this judgment we propose to dispose of three appeals as identical questions of law and mostly similar facts are involved in all these three appeals.
2. The appellant Liaquat Ali (Appeal. No, 239(L) of 1996) was working as Sub-Divisional Officer. The appellant Muhammad Ilyas (Appeal No,240(L) of 1996) was working as Divisional Accountant and appellant, Mukhtar Ahmed (Appeal No, 244(L) of 1996) was working as Sub-Divisional Clerk in WAPDA and they were posted in Jhang for certain period between 1989 to 1993. At the time of audit of accounts in 1992 it was found that huge amount has been misappropriated and consequently a detailed audit was conducted and a preliminary inquiry report was prepared. The appellants and some other officials were found guilty during the said preliminary inquiry. A stereotyped show- cause notice was served on all the said officials charging them for embezzlement and misappropriation of Rs,5,31,169 and deliberate concealment of cash vouchers amounting to more than twenty-six lacs rupees. The show-cause notice was issued under section 17(1-A) of WAPDA Act. After getting a reply and affording chance of personal hearing several employees including the three appellants were removed from service under the said section vide order dated5-5-1996.
3. Three other officials namely Ali Akbar, Asif Muzaffar and Muhammad Yousaf were also proceeded against in the similar way and the same penalty was imposed on them as well, on the same date, in an identical show-cause notice. Their Service Appeals Nos.217, 218 and 223(L) of 1996 were heard and decided by this Tribunal vide judgment dated 24-12-1996. The present appellants of Appeals Nos. 239, 240 and 244(L) of 1996 had also filed their service appeals after seeking their departmental remedies ineffectively. The situation, alleged offence, the show-cause notice and the order of penalty of the set of earlier three appeals as well as the present one are identical. The earlier appeals were accepted on technical grounds and the case was remanded to the Authority for proceeding afresh by holding inquiry under the Pakistan WAPDA Employees (Efficiency and Discipline) Rules and the similar judgment was to follow for the appeals in hand as well. However, at the time of arguments both the learned counsel representing the parties stressed that there were some additional points to be considered for decision of these appeals. The learned counsel for the two appellants, and the third appellant in person, argued the case. For the appellant, Liaquat Ali it was stated that he was not found guilty during the investigations of the criminal case as per reports of the Legal Cell of the F.I.A., and consequently such observations were believed by the Court as discussed in the bail order. It was also added that the said appellant was an S.D.O. and he was proceeded against whereas similarly placed other S.D.O. has not been so penalised under section 17(1-A). It was further argued that the alleged misappropriated amount was not deposited by him and so there was no indirect confession of the guilt. On behalf of the appellant, Muhammad Ilyas it was argued that he had remained posted in the Jhang Division for a short period and the audits were regularly conducted but no discrepancies were pointed out rather all the reports were good and that the F.I.A. has not registered any case against this appellant due to the absence of any evidence against him. It was further added that even in the preliminary inquiry there was no indication of his involvement and since he was not posted there at the time of investigations, therefore, he was not responsible for missing vouchers. It was also said that the alleged embezzled amount was not deposited by him. The third appellant i,e, Mukhtar Ahmed contended that the charge of misappropriation of Rs,5,80,000 was incorrect as per letters of the Officers of WAPDA. The major case was said to be regarding the loss of vouchers which was not the responsibility of the appellant rather the Office of XEN, Jhang was alleged to be the custodian of cash vouchers because the appellant was the custodian of Cash Book which has duly been produced and inspected. He further added that practically there were no missing vouchers and all the record was complete but the entire story was fabricated due to ulterior motives.
4. The learned counsel for the appellant also argued that the opportunity of defence has not been provided to the appellant and thus the principle laid down in the case of Elahi Kamran v. WAPDA vide judgment of the Honourable Supreme Court dated 15-5-1996 was violated. He further argued that the copy of preliminary inquiry report was not served with the charge-sheet as laid down in PLD 1986 SC 162. He further stated that when two modes were available to the department for proceeding against the employees, the one providing better opportunity of defence to the civil servants should be applied by the employer department as per 1993 SCM R 603. He finally concluded that in Civil Petition for Leave to Appeal No,1741 of 1996, decided on 25-11-1996 the findings of this Tribunal in Appeal No,46(L) of 1996 has been upheld whereby it was held that in matters of discipline section 18 of WAPDA Act read with (Efficiency and Discipline) Rules are to be applied instead of action under section 17(1-A).
5. The learned counsel for the respondents argued on merits as well as on legal platforth. He was of the view that the observation of a Court in bail order is only of summary nature and that cannot be held to be conclusive verdict of the innocence of the accused. With the assistance of the representative of the respondent-department, he stated that the said other S.D.O. has neither been exonerated nor was discriminatively protected but keeping in view the nature of allegation against him, he was being proceeded against under the (Efficiency and Discipline) Rules. With regard to the involvement of the XEN. in the case, being the custodian of record, he has stated that no action was initiated against the XEN because his direct involvement in the fact of misappropriation was neither reported by Audit nor in the finding of the Preliminary Inquiry Committee. He forcefully argued that the appellants were responsible for misappropriation of huge amount particularly re- cycling the paid vouchers over and over again for payment and thus they have misused the trust reposed in them and, therefore, they were not acceptable to the Authority. On legal plan, the learned counsel argued that the finding of this Tribunal, in the earlier set of three appeals, was arguable particularly on the grounds of choice of available procedures, applicability of section 17(1-A) to the cases of misconduct, the purpose of amendment and the mode of decision making by the Authority as reconstituted in 1995.
6. Before discussing and analyzing the arguments advanced in this context it will be proper if the finding of this Tribunal contained in earlier judgment in Appeals Nos. 217, 218 and 223(L) of 1996 is summarized. In the said judgment we had held that:--
(i) Section 17(1-A) can be applied in matters of administrative expediency where the services of the employees are dispensed with for administrative and financial reasons like becoming surplus, lack of funds, winding up of a particular project, etc. etc. Hence this action does not amount to penalty;
(ii) Section 17(1-A) cannot be applied in disciplinary cases involving inefficiency, indiscipline or misconduct;
(iii) In disputed questions of fact, a regular inquiry under the Pakistan WAPDA Employees (E&D)
Rules has to be held and summary procedure cannot be adopted in controversial matters;
(iv) The Legislature did not intend to amend the said section in 1994 to provide mere power to WAPDA but the amendment was with a purpose to protect the rights of the employees. This intention of the Legislature cannot be defeated merely by the compliance of formalities of issue of show-cause notice in disputed questions of fact;
(v) The purpose of immunity of action under section 17(1-A) from being challenged in any Court or Tribunal, was not with the intention to give unbridled powers to WAPDA against the employees but only to stress that the action of the Authority in cases of administrative expediency, not amounting to penalty, could be protected from litigation;
(vi) The Authority was reconstituted in 1995 by an amendment and three Secretaries of the Government of Pakistan of three Divisions like Water and Power, Finance and Planning and Development were designated as Ex-Officio Members of the Authority. This amendment was with a purpose of changing the earlier level of decision-making;
(vii) Such highly placed Ex-Officio Members could not be bypassed by the Authority while taking decisions of important nature; and
(viii) The decision of the Authority has to be passed by the concurrence, or majority, having the specific approval or otherwise of all the Members constituting the Authority.
7. Since the requirements, contained in the sub-paragraphs of the preceding para., were not complied with, therefore, the earlier appeals were accepted and the cases were remanded for re- consideration by the Authority as per law and rules. The learned counsel for the respondents differed with the view expressed in the said judgment and vehemently argued that section 17(1-A) being a statutory provision was available to the Authority to take action against any of the employees even in cases of discipline and misconduct. He further argued that action under section 17(1-A) was more beneficial and benevolent to the employees as the decision is made at the highest possible level and major penalty of dismissal is also avoided. He stated that for decision- making, only the quorum has to be available and there was no need of the concurrence of the entire Members of the Authority.
8. As held earlier, section 17(1-A) was available to the Authority for dispensing with the services of the employees on technical, administrative and financial reasons. Cases of indiscipline and misconduct cannot be handled under the said provision additionally for the reasons that section 18 of WAPDA Act specifically provides for the framing of procedure relating to .... the terms and conditions of service of its officials and servants and that the Authority shall be "competent to take disciplinary action" against its Officers and servants. Efficiency and Discipline Rules have been framed by WAPDA under the said provision and, we reiterate our earlier findings, that disciplinary action against the employees can only be taken under the rules framed by the Authority in accordance with the power vested in it under section 18. We cannot concur with the brilliant arguments advanced by the learned counsel for the respondents that section 17(1-A), section 18 and the procedure available in the Pakistan WAPDA Employees (E&D) Rules are all the modes open to the Authority and it was its discretion to choose any of them. Section 17(1-A) cannot be applied to disciplinary matters and section 18 cannot be applied to the matters of administrative and financial expediency.
9. In cases where section 17(1-A) is applied there is neither any provision of appeal to the Authority (because the Authority has itself taken final action) and hence the departmental appeal or even representation would not lie and per section 17(1-C) the jurisdiction of the Courts and Tribunals is excluded. If the interpretation of the respondents is accepted all the employees of WAPDA will be placed at the sweet discretion of the arbitrary exercise of power without any legal recourse either departmentally or judicially. This can never be the intention of any Legislature in a civilized society.
10. With regard to the arguments pertaining to decision-making by the Authority on the basis of quorum only, we have to say that if section 7(2) is considered to be the only and final provision, it would mean that any decision on behalf of the Authority can be taken by only two Members (including a Chairman or his delegatee) and so bypassing the rest of the five Members. 'Prior to 1995 there were only three Members and a Chairman and in that case the quorum could consist of two Members only. With the reconstitution of the Authority now there are seven Members including the Chairman and if two of them are allowed to take conclusive decisions, like the previous practice, the entire intention of the Legislature would be defeated. Quorum can be to the extent of 1/3rd or one-half of the entire membership but it cannot be less than that. This provision was also to be amended. The quorum is normally necessary for the purpose of holding the meeting but the decision cannot be said to be taken by the attending Members on behalf of others. It could further be argued that it was also not necessary to have the concurrence of members available at a meeting (on the basis of quorum) to take a decision rather the majority of the qurush can take a decision. If it was so, the decision could be taken by even one Member to the detriment of the views of rest of six members. This can never be the intention of democratically elected Legislature. We are of the opinion that if all the Members are informed about the meeting and they are not in a position to attend the meeting, the meeting can be held by the available Members/Chairman, if the quorum is complete. However, after the meeting the decision of the attending Members should be circulated to the absent Members for their concurrence or dissent.
Thereafter, a final decision can be made on the basis of the opinion of majority. In the instant case there is no proof that all the Members were informed of the meeting with full agenda and complete details of the items to be considered at the meeting. There is also no indication that any effort was made to get their views about the decision proposed to be taken by the Authority. Thus, the three members and a Chairman (who had been constituting the authority prior to 1995) shall still be holding the field to take final vital decisions without the concurrence or approval of the members so added by the Legislature in 1995. These observations cannot be dubbed as legislation by judicial for rather it is in consonance with the principles of interpretation of statutes that the provisions of law is to be interpreted in a way that another provision should not become redundant and that the purpose of legislation particularly in amendment cases has to be considered so that the intention of Legislature is not defeated. Thus, the argument that section 17(1-A) was available to the authority to be applied in cases of misconduct and disciplinary proceedings like -that section 18 or rules framed thereunder. If this argument is accepted then on the one hand the authority will be vested with the arbitrary powers against the employees without leaving them with any recourse to the department or the judicial institutions and on the other hand section 18 and the rules framed thereunder will become infructuous. By interpreting the two sections, as stated earlier both the statutory provisions will become meaningful that in cases of dispensing with the services of employees without any blot on their career and without amounting to a penalty, the powers under section 17(1-A) can be exercised only for financial or administrative situations. Whereas section 18 read with the Efficiency and Discipline Rules can be invoked for disciplinary matters, including misconduct. Similarly, if the argument of the decision making on the basis of the provisions contained in section 7(2) is taken to be the last word then only two members or even one of them can be legally presumed to supersede the rest of the members of the authority and thereby defeat the purpose of legislation whereby three senior most officers of Federal Government were designated as ex officio members of the authority.
11. The learned counsel for the respondents also argued that practically the application of section 17(1-A) to the cases of misconduct was more beneficial and benevolent to the employees. He state that in the said section the major penalty of dismissal can be avoided and the decision is not taken by any authorized officer or the competent authority but the decision is taken at the highest level of the authority. We are not convinced with the argument. It cannot be the will of the Legislature to deprive the employees of their right of defence in controversial matters and the right to cross- examine the witnesses in the fair trial. The said section also declares the decision of the authority as final without leaving any room for internal or external redress of grievance. That is why another provision in a form of section 18 was incorporated in the law for the protection of terms, and conditions of service and for compliance of the detailed procedure of inquiry under the Efficiency and Discipline Rules. The learned counsel for the respondents had further argued that the choice of summary trial was already available to the authority under Efficiency and Discipline Rules and in case of remand the same procedure can be adopted which is, on the one hand, mor severe as a penalty of dismissal can also be imposed and on the other hand the detailed inquiry proceedings can. be avoided. This is again a misconception. The law and the precedents have clearly defined the action to be taken by the department in various matters. Summary procedure can be adopted in matters which could be decided without recording evidence and detailed inquiry is held when the questions of fact are controverted.
12 Although we had not touched the merits of the case in the earlier judgment and we do not intend to do so in this still but keeping in view the detailed arguments addressed on both the sides, it has become necessary to touch the certain important issues whereby the learned counsel for the respondents justifies the "benevolent" action of removal from service of several employees under section 17(1-A). The charge-sheet contained two allegations. The first one relates to the misappropriation of an amount of Rs:5,31,169 and the second deals with the deliberate concealment of cash vouchers worth more than Rs,26,00,000. Analysis of the charge-sheet will expose the efficacy, validity and technical value of the 'benevolent' severe penalty. The charge- sheet is thus analyzed as follows:--
(a) It is an established principle that every accused is to be charged specifically for the offence that was committed by him individually or by a set of them collectively. The perusal of the charge- sheet dated 3-8-1995 shows that it was a stereotyped one issued to all the concerned employees of WAPDA charging them for identical offence without naming the offence as the collective one;
(b) The charge-sheet shows as if each of the appellants and other employees was responsible for misappropriation of Rs,5,31,169 whereas the entire record shows that it was the total misappropriated amount. One accused cannot be charged for the offence of misappropriation committed by another one independently and at different time and place;
(c) Every one of the accused employees has been charge-sheeted for concealment of cash vouchers whereas most of them were not posted at their stations at the time of detailed Audit or preliminary inquiry. When posted elsewhere, an employee cannot be supposed to produce a document of his previous station. They have not been charged for loss or destruction of the documents but they have been charged for concealment which can only be done by a person who is immediately custodian of the said document;
(d) Even the concealment of the cash vouchers has been made against each employee to the tune of Rs,26,24,865 whereas admittedly the employees were independently responsible for the non-availability of the vouchers of muchless amount than one mentioned in the show-cause notice; and
(e) The learned counsel for the respondent-department vehemently referred to the recycling of various vouchers time and over again for misappropriation purposes but this fact has not been mentioned in the show-cause notice. It is an established practice of the criminal law that the charge is always required to be specific giving nature of the offence and the responsibility of the accused. A uniform charge cannot be leveled with cumulative effect on the individual accused.
13. There is also considerable distinction between the level of responsibility, period of posting, amount alleged to be misappropriated by the individual employee, the evidence available in proof of the allegations and the partial confession of guilt by deposit of the alleged defalcated amount.
This vast difference between the responsibility of officials could not be legally decided by a stereotyped show-cause notice containing identical allegations and finally imposing identical penalty despite vast distinction between the individual liability.
14.We agree with the learned counsel for the respondents that the case of the appellant Mr. Liaquat Ali (Appeal No, 239(L) of 1996) cannot be placed on better footing only on the basis of an observation in a bail order. Similarly, though the amount was not stated to be deposited by the said appellant himself but all the deposited vouchers contained his signatures and, therefore, he cannot be entirely absolved of the liability. Similarly, the case of the appellant, Mukhtar Ahmed (Appeal No, 244(L) of 1996) does not contain any special features placing him on better footings with the rest of the colleagues. However, the case of Mr. Muhammad Ilyas (Appeal No,240(L) of 1996) is certainly distinguishable. He has neither deposited any amount himself nor any amount has been deposited in his name or with his signatures. Additionally all the rest of the employees including those who have been treated differently and not under section 17(1-A) are mentioned as accused in the criminal case but the name of Muhammad Ilyas, appellant, does not figure anywhere. Even in the preliminary inquiry report, no specific no specific allegations are levelled against him nor he has been found guilty of any specific misappropriation. His case is certainly different to all his other colleagues.
15.In view of the above discussion, we remand the case of appellant Liaquat Ali (Appeal No,239(L) of 1996) and appellant Mukhtar Ahmad (Appeal No, 244(L) of 1996) to the respondent-department for its re-consideration and decision in accordance with law and rules keeping in view the above observations. The appeal of Muhammad Ilyas (Appeal No,240(L) of 1996) is accepted and the impugned order dated 5-5-1996 is set aside. He may be reinstated in service with consequential benefits in accordance with the rules.
16.No order as to costs.
17.Parties be informed.