' Raja Muhammad Sadiq by means of this constitutional petition has challenged the validity of order dated 5-7-1977, passed by the respondent in exercise of powers under section 17(1-A) of the West Pakistan Water and Power Development Authority Act, 1958 (XXXI of 1958) (hereinafter called the "Act"). The order reads:- "The Authority decided that Raja Mohammad Sadiq, Project Director, SCARP. Electrification Project (North) WAPDA, Lahore, may be removed from service under section 17(1-A) of WAPDA Act, without assigning any reason, without giving any notice and on payment of 30 days' pay in lieu thereof."
' According to the petitioner he submitted a representation in the form of appeal against tie said order to the President of Pakistan, that appeal is still pending, petitioner waited for reasonable time and as he did not hear anything, so he could not wait indefinitely and there being no other adequate remedy, he invoked the constitutional jurisdiction of this Court.
2. The petitioner started his career as Sub-Divisional Officer in the EAST while Government of West Pakistan in the year 1957. He was later on promoted as Executive Engineer and then as Superintending Engineer. At the time of termination of his services, he was Project Director, SCARP Electrification with WAPDA.
3. On 28th March 1959, Notification No, ADSEC/ICW-28-3/59, was issued. By means of the said notification, services of all those serving in the Electricity Department of West Pakistan were transferred to WAPDA with effect from 1-4-1959. Thereafter, the petitioner continued to work with WAPDA.
4. After the petition had been admitted, a request was made by the learned counsel for the respondent (WAPDA) to implead the Federal Government as one of the respondents. This request was allowed by my order dated 10-8-1977 and Raja Abdur Razzaq has entered appearance on behalf of the Federal Government.
5. Learned counsel appearing in support of this petition challenged the impugned order on number of grounds. This first point taken was that the petitioner joined service in the year 1957 with the Government. Later on, his services were transferred to the respondent vide notification dated 28-3- 1959, referred to above. Relying on pars. 5 ibid (reproduced below), it wee contended that the respondent had no authority to terminate his services. It was only the Government who was competent in law to remove the petitioner from service and that too in accordance with law:- "5. The Authority shall exercise all administrative, disciplinary an financial powers in respect of persons transferred to it as were exerciseable on the 31st March 1959, by Government or any other Authority, except that the Authority shall not be competent to dismiss, remove from service or reduce in rank such persons in whose cash the appointing authority was Government. Disciplinary action involving any of the three punishments indicated in this clause in respect of the officers mentioned may, however, be initiated by the Authority."
' It was submitted that the impugned order appeared to have been passed under a legal misunderstanding which was that it was taken for granted by the respondent that the petitioner was an employee of the WAPDA, therefore, he was governed by the WAPDA Act for all intents and purposes and the respondent, as such, had complete control and authority over him.
6. I shall discuss this contention later on, because lengthy arguments were addressed from both sides on this point and I think this is the main point which shall determine whether the impugned order was passed with or without lawful authority. Therefore, before dealing with this point I would like to dispose of the other points which to my mind are of minor significance.
' Learned counsel then cited para. 12(a) of President Order No, 1 of 1970, which is to the following effect:- "all powers of the Provincial Government in relation to the said Authority shall be exerciseable by the President" ' and argued that as a result of this, the President of Pakistan was designated to be the appointing authority of the petitioner.
' Learned counsel also took up the plea of mala fide and submitted that the petitioner had been the President of the Electrical Engineers Association. As such he had been taking active interest in the affairs of the Association. He was connected with the Association as an office-bearer since 1970 and had been safeguarding and watching the interest of the Association zealously and for that matter he never hesitated to defend and plead the cause of Association whenever and wherever an occasion arose. This was not liked by the higher authority, especially by the Chairman of the respondent's Organization. The result was that he was singled out and with one stroke of pen he was thrown overboard. Learned counsel maintained that this was a clear case where a senior officer had been victimized.
' The next point taken by the learned counsel was that the impugned order was arbitrary and capricious, because the petitioner had been condemned unheard.
' It was further submitted that the impugned order was not passed by proper authority, because the case never came on the agenda, neither the corum nor the forum was proper. The impugned order was not signed by the Chairman and the officer who had signed the order was not empowered to do so.
7. The contention of the learned counsel that the impugned order was not passed by proper authority has no force, because it is evident from Annexure R./8 filed by the respondent that the order was signed by the Secretary, Member (Water), Member (Power/Finance) and Chairman. It was only communicated under the signatures of the Deputy Secretary (Inquiries).
' The second plea which can be disposed of summarily is that of mala fide. The plea of malafide when taken had to be proved by reliable evidence.
' It has been held in numerous cases decided by this Court as well as by the Supreme Court of Pakistan, that whosoever raises the plea, the onus is on him to prove it in the instant case, no evidence has been produced to prove the same and I think the mere averment is not sufficient.
Hence the contention is repelled.
8. This leaves me to examine as to whether it was the President of Pakistan who was competent in law to take necessary action against the petitioner, but before deciding this it is more important to first determine the status of the petitioner as to whether he is the Government employee or that of WAPDA, because once it is held that he is the Government employee then whosoever may be the appointing authority, the respondent would have no lawful authority to proceed against the petitioner.
' Learned counsel for the petitioner submitted that there is sufficient evidence to prove that the petitioner was never the employee of WAPDA. It was submitted that when he joined service, WAPDA was not even in existence. He was the employee of the Government. Subsequently when his services were transferred to WAPDA, he came over to WAPDA on deputation. He, therefore, retained his original position, even the terms and conditions of his service continued to be the same.
Learned counsel submitted that as such action could not be taken under section 17(1-A) of the Act, because the aforesaid provision of law was not applicable to the case of the petitioner and if any action had to be taken against the petitioner then the competent authority was the Government.
9. The main emphasis of the learned counsel was on the point that the petitioner continued to be the Government employee. It was submitted that had the intention of the Government been to transfer the petitioner to WAPDA as a full time employee, then there was no legal impediment to do so, but that could only be done by means of necessary legislation. Learned counsel submitted that no notification was issued whereby the Electricity Department had been abolished. It was further argued that there was ample evidence to prove that after the services of the petitioner had been transferred to WAPDA he was treated on deputation.
' In order to prove that the persons transferred from the Electricity Department to WAPDA were shown on deputation, in particular the petitioner, learned counsel referred to-
(a) page 348, Serial No, 114 of Civil List July 1962;
(b) page 653, Serial No, 95 of Civil List 1st July 1968;
(c) page 16, Serial No, 50 of West Pakistan Water and Power Development Authority (Power Wing)
Gradation List of Officers, as it stood on 30th June 1964;
(d) page 29, Serial No, 16 of the Punjab Government Rules of Business, 1974, Schedule I.
' Learned counsel also referred to inter se seniority list of Pre-Integration and Post Integration Government officers promoted to Class I , attached to Memorandum No, 30102-202, dated 10-10- 1974, where at serial No, 29, the name of the petitioner appears. Learned counsel then drew my attention to notification dated 30-6-1970, where Irrigation and Power Department was registered at No, L. 7532 and also to circular letter dated 29410-77, which is to the following effect:- "I am directed to refer to your petition submitted to the President in January 1976, on the subject mentioned above and to say that the President has been pleased to decide that Article 12 of the Province of West Pakistan (Dissolution) Order, 1970 (President's Order No, 1 of 1970) did not convert Provincial Government servants, who belonged to the Electricity Department of the Government of West Pakistan and were transferred to WAPDA into Federal Government servants."
' The inference which the learned counsel wanted me to draw from the aforesaid evidence was that the petitioner continued to be a Government employee.
' Learned 'counsel also referred to the written statement filed by the respondent and submitted that the respondent had not categorically denied the status of the petitioner as Government servant, because, they admitted the petitioner to be 'GOVERNMENT EMPLOYEE SERVING WITH THE AUTHORITY'.
10. Relying on Ahmad Hussain Qureshi v. Chairman, Water and Power Development Authority and another (1), it was submitted that even in the said case the respondent did not deny the status of Ahmad Hussain Qureshi as a civil servant. The learned Bench seized of the matter, after examining section 17 of the Act, made the following observations:- "A plain reading of the above provision leaves no manner of doubt that the Government remains the ultimate employer of the petitioner and others similarly placed with him. The section speaks of liability of the employees of the Electricity Department to serve under the Authority only on being so required by the Government as distinguished from automatic transfer from the Government to the Authority under the force of the statute itself. An express provision to negative the claim for deputation allowance is also a pointer to the same conclusion and this provision would have been inapt if the petitioner and others similarly placed had severed all connection with Government.
Then the second proviso speaks of delegation of administrative control. The concept delegation involves the existence of principal who transfers his authority or part thereof to be exercised by his delegate without divesting himself absolutely of such authority, therefore, the Government still remains the ultimate employer of the petitioner and others similarly placed. If the intention had been to divest the employees of the former Electricity Department of the Provincial Government of the status of civil servant, then there should have been express provision in that behalf similar to section 43-A(2) of the Motor Vehicles Act, 1939 (since repealed). That section expressly provided..... 'all persons at any time employed for the purposes of any such Road Transport Board. .. Shall not be deemed to be servants of any Government on the ground that they are employed . . .By such Government'."
' This view was confirmed in the case of S. Sajjad Haider v. Government of West Pakistan (2), where while examining notification dated 28th March 1959, it was observed:- "In the exercise of his power, the Governor of West Pakistan by the notification dated 28th March 1959, directed that all persons serving ( PLD 1967 Lab. 796 (2) PLD 1967 Lah. 938 in whatever capacity in the Electricity Department of West Pakistan will stand transferred for service under WAPDA with effect from 1st of April 1959. Among other conditions, it was provided in clause (5) that the Authority would not be competent to dismiss, remove from service or reduce in rank such persons in whose case the appointing authority was the Government. The employees of the Electricity Department, therefore, continued to remain in the service of Pakistan but had only been transferred to the WAPD in terms of the notification dated 28th March 1959. This being so, Article 178 of the Constitution has been applicable to such persons at all times and for that reason the Constitution (Sixth Amendment) Act of 1976 applies to them as well. The petitioner was working in the WAPDA on account of his transfer from the Government. He, therefore, could serve under the said Authority so long as he continued to remain in the service of Pakistan acting in connection with the affairs of the Provincial Government. On his retirement from the said service, he could not continue, with the WAPDA unless the latter Authority under its own orders were to employ him on its own terms and conditions. In that case, such a person could have no connection with the Government. What the Governor did was to retire him from the service of the Provincial Government which be was competent to do in the exercise of his powers under sub-clause (b) of clause (4) of Article 178 of the Constitution."
11. Learned counsel for the respondent raised two preliminary objections, first, that this petition was not maintainable, The petitioner, if at all has any cause of action, should go to the Service Tribunals as envisaged under section 4 of the Service Tribunals Act, 1970. Reliance was placed on Muhammad Salim v. WAPDA (1).
The second objection was with regard to the appointing authority of the petitioner. It was submitted that the appointing authority of the petitioner was not the Government, he was appointed as an Assistant Engineer by the Chief Engineer Electricity, the Government had nothing to do with that.
12. On merits it was argued that the petitioner was not a Government employee, he was not on deputation, he was full time employee of the WAPDA and, therefore, was subject to WAPDA Act and as the law permitted the termination of the services of an employee of the WAPDA without any show-cause notice, however, hard it might appear to be, the petitioner's service had been terminated in accordance with law and with lawful authority. Learned counsel submitted that it was to the advantage of an employee whose services were being terminated, because he was being removed without any stigma.
' It was submitted that the services of the petitioner had been transferred to WAPDA by notification dated 2l-3-1959. Subsequently para. 5 thereof was misted and para. 6 was deleted by Notification No, SOP (ADMN) 5/6.64, dated 27th' May 1966. Para. 5, as recasted is to the following effect :- "(5) The authority shall exercise all administrative, disciplinary and financial powers in respect of persons transferred to it as were exercisable on the 31st March 1959, by Government or any lower authority : ' Provided that where any person transferred to the Authority has, under he rules or Government instructions, in disciplinary matters, a right (1) PLD 1976 Lab. 492 of appeal to the Governor, he shall, while employed under the Authority, be entitled to the exercise of that right : ' Provided further that if the case of any person transferred to the Authority is required under the rules or Government instructions, to be submitted to the Governor and/or the West Pakistan Public Service Commission, the same shall continue to be so submitted to the Governor and/or the Commission."
' In view of the aforesaid notification, learned counsel submitted that the respondent was authorised to exercise the same powers which previously vested in the Government.
' It was further submitted that under West Pakistan Water and Power Development Authority (Delegation of Powers) Rules, 1970, dated 30-64970, the Authority had been delegated all the necessary powers as contained in the Rules. In the instant case, the appointing authority of the petitioner was Member (Power), hence the action taken against him under section 17(1-A) of the Act was by the Authority as a whole.
13. Reverting to the main point, learned counsel submitted that had the petitioner been on deputation, he would have been entitled to deputation allowance, because such an allowance was given to those officers who had conic from other Departments.
' Learned counsel then submitted that there was sufficient evidence in law in the form of notifications read in the light of WAPDA. Act, to prove that the Electricity Department had been abolished long ago. Learned counsel referred to pars. 1 of Notification No, ADSEC/ICW-27-3/59, dated 28th March 1959, which is to the following effect :- "(1) All assets Including lands, works machinery, apparatus material and plants vetted in.
Government in the Electricity Department shall be transferred on the 1st April 1959 to the West Pakistan Water and Power Development Authority (hereinafter called the Authority) as per book value on the 31st March 1959. The Authority shell pay a net return of 4% to Government on the book value of the assets transferred to it. The Authority will not pay any interest on the loans taken by Government for financing electrical projects, but the liability to service such loans will rest with the Authority."
' Reference was also made to Notification No, SOP (ADMN) 5/6.64, dated 27th May 1966, as well as No, SORI (S&GAD) 1-98/69, dated the 30th June 1970, and it was submitted that the cumulative effect of these notifications would be not only that the Electricity Department ceased to exist but also that the persons working in that Department became the employees of WAPDA.
' It was next submitted that action had been taken against the petitioner in accordance with law by a lawful authority in a lawful manner. This was, therefore, not subject to any exception before this Court.
' Last of all, learned counsel relied on the decision in Writ Petition No, 2642-S-1976, which was upheld by a Division Bench of this Court in I. C. A. No, 150 of 1976.
14. Both sides have adduced good deal of documentary evidence in support of their respective stands, but one thing is clear and that is that the petitioner never received any deputation allowance. Similarly, there is no specific solitary notification by means of which the Electricity Department had been abolished nor any Act/Statute had been passed whereby the employees of the Electricity Department transferred to WAPDA were to be treated as WAPDA employees in future.
' Notification dated 28th March 1959, which had been relied upon by the learned counsel for the respondent at the most proves the transfer of assets of the Electricity Department to WAPDA, but that would not resolve the real controversy, which is about the status of the petitioner. In my view, therefore, it is immaterial whether the Electricity Department existed or not, the fate of the petitioner, cannot be linked with the existence of the Department.
' Here I may refer to the written statement where the respondent took up the following position :- "The respondent was fully aware of the fact that the petitioner was a Government servant of Electricity Department of the former Government of West Pakistan and his services had been transferred to the Authority under which he was serving within the meaning of section 17(1-A) of the aforesaid Act. Although the petition& is not a WAPDA employee nevertheless he is a person serving with the Authority within the meaning of section 17(1-A) of the Act and he was competently removed by the order of the Authority."
(The underlining' is by me).
15. The underlined *portion leaves no room for doubt that the respondent himself is not sure about the status of the petitioner and that is why the petitioner was treated as 'serving with the Authority within the meaning of section 17(1-A) of the Act".
' In section 17 of the Act, after subsection (1) the following new subsection (1-A) was inserted :- "(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 has than thirty days' notice or pay for the period by which such notice falls short of thirty days."
' The aforesaid amendment was published in the Gazette of Pakistan, Extraordinary, Part I, dated 22nd December 1975, and came into for at once,
16. One of the accepted principles regarding the application of a notification and the Statute is that it is always prospective, however, it is open to the Legislature to make it retrospective, but that intention had to be express. Reference in this connection be made to Muhammad Akhtar Hussain v.
Government of West Pakistan (1) wherein it had been observed :- "It is well settled that legislation may be made both prospectively and retrospectively but normally legislation, which is not of a purely procedural nature, will not be given retrospective effect so as to take away vested sights unless the Legislature has used express words (1) PLD 1970 SC 146 that behalf or such an intention necessarily flows from the language of the statute. There are express words in the Ordinance XLI of 1963, giving it retrospective effect. By saying that the Rules of 1943 shall be deemed to have been repealed "with effect on and from the first day of January 1946" the Ordinance made its intention abundantly clear and there could be no room for doubt that the repeal was being made with retrospective effect."
17. Section 17(1-A) of the Act, referred to above, does not bring about any change in the status of the employees whose services had bee transferred to WAPDA. The petitioner was never employed by WAPDA. So far as the words "serving under the Authority are concerned, no don be was serving under the Authority, but in this connection the important point to be noted is the starting point and there is no doubt that in t case of the petitioner, the determining factor will be what was his position when he joined the service. At that time he was a Government employee and, therefore, I have no hesitation in holding that he was serving under the Authority as a Government employee.
18. I respectfully agree with the principle laid down in Ahmad Huai% Qureshi v. Chairman, WAPDA that the only legal mode to bring about change in the terms and conditions of such an employee would be by means of a Statute and nothing short of that. I fail to understand that if the Government wanted to change the status of the petitioner and other employees of the same category why act could not be done by means of proper legislation.
19 Athough it was argued before me and even in the written statement, it has been mentioned "much water has Gown under the bridges since various amendments pointed out above have been made to the notifications and the law which have overridden the situation as it existed when the aforesaid pronouncement of law was made" ' but that is not correct.
The basic notification is that of 28th March 1959 beating No, ADSEC/ ICW-28.3/59. It was this notification by means of which only the services were transferred. The subsequent notifications issued were not in supersession of that. Notification No, ADSEC/ICW-27-3/59, dated 28th March 1959, was independent and only dealt with the transfer of assets of the Department. T rose notifications were for a specific purpose. Hence the subsequent notifications did not change the basic status and position of the petitioner.
' Here I may observe that the case of Ahmed Hussain Qureshi was heard on 1-6-1966 and 9-1.19 )7 and that of S. Sajjad Haider on 7th and 29th November 1966, and the notification dated 27-5-1966, was earlier in time. It was, therefore, the duty of the respondent to have produced that notification before the learned Bench seized of the matter, but that was not done; it is not for me to comment at this stage as to why the said notification was not produced, nevertheless, I. Have independently -examined the notification dated 27th May 1966, individually as well as along with notification dated 30th June 1970, but I do not thin it improves the position of the respondent In any way and, therefore, the law laid down in Ahmad Hussain Qureshi case still bold the field.
20. I have also gone through the order passed in Writ Petition No, 2442-5-1976 as well as I. C. A. No, 150 of 1976, The writ petition was dismissed he Mine. There the main point urged by the learned counsel was the tires of section 17(1-A), neither the notifications, referred to in this petition, nor the aforesaid two cases were examined. Intra Court Appeal was also dismissed in limine on the ground that it was not maintaintable. Therefore, these two decisions are not helpful to the respondent.
21. In the light of the above I am of the view that the petition continues to enjoy the status of a Government servant and as such he was not an employee of the WAPDA. Hence the impugned order is without lawful authority and as such of no legal consequence.
As the order impugned is void ab initio) and without lawful authority, therefore, in the instant case, I do not think the objection of the learned counsel for the respondent that the petitioner should first go to the Services Tribunal is of any substance.
22. For the foregoing reasons the impugned order is hereby set aside and the writ petition is accepted with costs.
Before concluding, I am constrained to observe that though the learned counsel for the respondent described section 17(1-A) as an "advantageous law", because an employee is removed from service without any stigma, but I am of the view that it is the other way about; the person so removed carries a permanent stigma for the rest of his life. Because he never gets a chance to vindicate his position and to explain the cause of his removal. It is not for me to comment whether such a law would help in improving the efficiency, honesty and integrity of an employee or would mean "make bay while the sun shines."
' I hone that in times to come the Authority concerned would also take notice of this law and bring it in conformity with the laws of Qur'an and Sunnah.