THE WEST PAKISTAN WATER AND POWER DEVELOPMENT AUTHORITY ACT, 1958

THE WEST PAKISTAN WATER AND POWER DEVELOPMENT AUTHORITY

ACT, 1958

 

[W.P. ACT XXXI OF 1958]

(Continues in force in Punjab, Sindh, NWFP and Balochistan under Art. 19(2), Province of West Pakistan (Dissolution) Order (P.O No. I of 1970)

 

[24^th April 1958]

[AS AMENDED BY:

(1)             WEST PAKISTAN ORDINANCE XIII OF 1959(Continues in force in Punjab, Sindh, NWFP and Balochistan under Art. 19(2), Province of West Pakistan (Dissolution) Order (P.O No. I of 1970)

(2)             WEST PAKISTAN ORDINANCE XII OF 1960(Continues in force in Punjab, Sindh, NWFP and Balochistan under Art. 19(2), Province of West Pakistan (Dissolution) Order (P.O No. I of 1970)

(3)             WEST PAKISTAN ORDINANCE XX OF 1964(Continues in force in Punjab, Sindh, NWFP and Balochistan under Art. 19(2), Province of West Pakistan (Dissolution) Order (P.O No. I of 1970)

(4)             WEST PAKISTAN ADAPTATION OF LAWS ORDER, 1964(Continues in force in Punjab, Sindh, NWFP and Balochistan under Art. 19(2), Province of West Pakistan (Dissolution) Order (P.O No. I of 1970)

(5)             WEST PAKISTAN ORDINANCE XII OF 1967(Continues in force in Punjab, Sindh, NWFP and Balochistan under Art. 19(2), Province of West Pakistan (Dissolution) Order (P.O No. I of 1970)

(6)             WEST PAKISTAN ACT XIII OF 1967(Continues in force in Punjab, Sindh, NWFP and Balochistan under Art. 19(2), Province of West Pakistan (Dissolution) Order (P.O No. I of 1970)

(7)             FEDERAL ACT LXXXIV OF 1975]

An Act to provide for the unified and co-ordinated Development of the water and power resources of Pakistan.

            Preamble. Whereas it is expedient to provide for the unified and co-ordinated development of the water resources of West Pakistan;

COMMENTARY

            Preamble. Water and Power Development Authority is a corporate body having its own charter and is subject to administrative control of the Federal Government and financial scrutiny by the National Assembly. Scope of activities of Authority summarized.(1997 SCMR 641)

            Fixation of tariff for supply of electricity to consumers by WAPDA, Supreme Court desired that to have a welfare State, the provisions like the one which are contained in the English law (English Electricity Act, 1957) may be incorporated in WAPDA Act so that consumers may have effective participation in framing the tariff and least which is expected is that Standing Power Rates Advisory Board be revived, and its services may be invoked in aid while revising the electricity tariff in any form. (1997 SCMR 641)

            Vires of. Principles of unequal bargain, economic duress or undue influence are not attracted. Petitioner entered into a contract with the respondents with their free consent. Petitioner do not fall in category of persons who are “unequal in bargain” or under “economic duress” or “undue influence”. Abridged conditions, as such are valid in law. Petition dismissed. (PLJ 1997 Lah. 306 (DB)

            Schedule of tariffs. Contended that different rates of tariff fixed for different categories of consumers makes whole tariff as discriminatory and, hence, being violative of provisions of Article 25 of Constitution of Islamic Republic of Pakistan, 1973. It is well-established a legal proposition that different rates of tariff are permissible under law. A consumer of lesser units uses less amount of electricity generated by thermal generation which is six times more costlier to the energy produced by hydel generation and, therefore, he has a right to be treated differently in fixation of the rate to a person who consumes more units of thermal generated energy. Held: Argument of discrimination being without any lawful basis and justification is repelled. Petition dismissed. (PLJ 1997 Lah. 306 (DB)

            WAPDA is a corporate body having its own charter. It is subject to administrative control of Federal Government. It is also subject to financial scrutiny by National Assembly as its audited annual accounts are to be placed before National Assembly, which in turn refers same to its Committee on Public Accounts for scrutiny and examination. Pakistan Water and Power Development Authority (Amendment) Act, 1994 has made amendments of far reaching consequences inasmuch as efforts has been made to convert WAPDA into a modern, viable and dynamic Corporation. Scope of its activities has been considerably enlarged. It may privatize or otherwise re-structure any operation other than the hydel generation power stations and National Transmission Grid. It may enter into a joint venture, inter alia, with any other corporation/company and, it may even purchase bulk power from private sector etc. of course, this is subject to Constitutional constraints. (PLJ 1997 SC 739)

            It is hereby enacted as follows:–

CHAPTER I

PRELIMINARY

1.         Short title and extent.—(1) This Act(For Statement of Objects and Reasons, see Gazette of West Pakistan, 1959. Extraordinary. Pp. 411 and 412) may be called the Pakistan Water and Power Development Authority Act, 1958.

(2)        It extends to the whole of Pakistan, except (Sub-section. For the words “the Federal Capital and the Special Areas” by WPA Order, 1964, S(1) Sch. Part VIII)[the Karachi Area and the Tribal Areas.]

2.         Definitions.— In this Act, unless there is anything repugnant in the subject or context—

           (i) “Authority” means the West Pakistan Water and Power Development Authority established under section 3 of this Act;

          (ii) “Chairman” means the Chairman of the Water and Power Development Authority;

          (iii) “Controlled station” means a power generating station declared as a controlled station under clause (iv) of sub-section (1) of section 11;

         (iv) “Government” means the Government of the Province of West Pakistan;

          (v) “Land” includes benefits to arise out of land, and things attached to the earth or permanently fastened to anything attached to the earth;

         (vi) “Local body” means any District Board, District Local Board, Municipal Corporation, Municipal Committee, Municipality, Small Town Committee or Notified Area Committee;

         (vii) “Member” means Member of the Water and Power Development Authority;

        (viii) “Power” includes hydraulic power, electrical energy, steam, gas or any other power notified as such by the Provincial Government in the official Gazette; and

         (ix) “Regulations” means Regulations framed under this Act.

 

CHAPTER II

CONSTITUTION OF THE AUTHORITY

 

3.         Constitution of the Authority.— (1) There shall be established an Authority to be known as the Water and Power Development Authority for carrying out the purposes of this Act.

            (2)        The Authority shall be a body corporate, shall be entitled to acquire and hold property, shall have perpetual succession and a common seal and shall by the said name sue and be sued.

4.         Appointment and term of office of Chairman and Members.— (1) The Authority shall consist of a Chairman and not more than (The words “three” subs. For the word “two” by W.P. Ordinance XII of 1967)[three] Members appointed by Government.

            Provided that till such time as the Authority is fully constituted, the Chairman shall exercise the powers, functions and duties of the Authority.

            (2)        The term of office of the Chairman shall be five years and that of a Member three years.

            (3)        Any person ceasing to be the Chairman or Member by reason of the expiry of the term of his office shall be eligible for re-appointment for another term or for such shorter term as the Government may decide.

            (4)        The Chairman or any Member may at any time resign; provided that his resignation shall not take effect until accepted by the Government.

 

5.         Remuneration and conditions of service.— The Chairman and each Member shall receive such salary and allowances and be subject to such conditions of service as may be prescribed by the Government, and shall perform such duties as are assigned to them under this Act or by any Regulation framed under it.

 

6.         Removal of Chairman or Members.— The Government may by notification remove the Chairman or any member—

      (a)  if he refuses or fails to discharge or becomes in the opinion of the Government, incapable of discharging, his responsibilities under this Act; or

      (b)  if he has been declared insolvent; or

      (c)  if he has been declared to be disqualified for employment in or has been dismissed from the service of Pakistan, or has been convicted of an offence involving moral turpitude; or

      (d)  if he has knowingly acquired or continued to hold without the permission in writing of the Government, directly or indirectly or through a partner, any share or interest in any contract or employment with or by or on behalf of the Authority, or in any land or property which, in his knowledge, is likely to benefit or has benefitted as a result of the operation of the Authority.

 

7.         Meetings of the Authority.— (1) The Authority shall meet at such time and place and in such manner, as may be prescribed by Regulations:

            Provided that until Regulations are made in this behalf, such meetings shall be convened by the Chairman.

            (2)        The Chairman, or in his absence, a Member authorised by him, and one other Member shall be present to constitute a quorum at a meeting of the Authority.

 

CHAPTER III

POWERS AND DUTIES OF THE AUTHORITY

 

8.         General powers and duties of the Authority and framing of Schemes.— (1) The Authority shall prepare, for the approval of the Government, a comprehensive plan for the development and utilization of the water and power resources of West Pakistan on a unified and multi-purpose basis.

(2)        The Authority may frame a scheme or schemes for the Province or any part thereof, providing for all or any of the following matters namely:—

                  (i)  irrigation, water-supply and drainage; and recreational use of water resources;

                  (ii)  the generation, transmission and distribution of power, and the construction, maintenance and operation of power houses and grids;

                 (iii)  flood control;

                 (iv)  the prevention of waterlogging and reclamation of waterlogged and salted lands;

                 (v)  inland navigation; and

                 (vi)  the prevention of any ill-effects on public health resulting from the operations of the Authority.

(3)        Every scheme prepared by the Authority under sub-section (2) shall be submitted for approval to the Government with the following information:-

               (i)  a description of the scheme and the manner of its execution;

               (ii) an estimate of costs and benefits; the allocation of costs to the various purposes to be served by the scheme and the amounts to be repaid by the beneficiaries; and

              (iii) a statement of the proposals by the Authority for the resettlement or re-housing of persons likely to be displaced by the execution of the scheme.

            (4)        The Government may sanction or may refuse to sanction, or may return for reconsideration any scheme submitted to it under this section, or may call for such further details or information about the scheme, or may direct such further examination of the scheme as it may consider necessary.

COMMENTARY

            Constitutional petition. Inter-Provincial Co-ordination Committee’s decision that Provincial Government would exempt WAPDA from payment of property tax and control on its equipment and materials and in turn WAPDA would charge electricity tariff on street lights and drinking water schemes under its purview throughout the country on domestic rates. Respondent (Government) refused to implement such decision. WAPDA seeking to get implemented such decision through High Court. Petitioner (WAPDA) was admittedly carrying on its functions on behalf and for the Government, therefore, its properties, equipments and material would vest in Federal Government. Petitioner on its part had admittedly started charging electricity tariff on street lights and drinking water schemes on domestic rates from respondents while respondents had not performed their obligations by granting exemption to WAPDA from payment of octopi on its equipment material. Inter-Provincial Co-ordination Committee having unanimously decided that Provincial Governments would exempt WAPDA from payment of property tax and control on its equipment and material, therefore, respondents were estopped from levying control on equipment and materials of petitioner. Provincial Government would have, thus, power to suspend or abolish control on equipment and material of petitioner. On basis of decision of Inter-Provincial Co-ordination Committee, respondents were liable to suspend/abolish levy of control on equipment and material of petitioner. Provision of Art. 165 of the Constitution also envisages that no control could be levied and charged in respect of equipment and material of petitioner for the same, in fact, vested in Federal Government. Respondents were directed to suspend and abolish levy of control and not to charge control on equipment and materials of petitioner.(PLD 1998 Kar. 209)

9.         Schemes framed by other agencies.— (1) Any scheme framed by an agency in West Pakistan, other than the Authority, in respect of any of the matters in sub-section (2) of section 8, if its estimated cost exceeds the amount to be prescribed(For notification prescribing amount, see Gazette of West Pakistan, 1959, Extraordinary, p.105) by the Government, shall be submitted to the Government through the Authority and the Government  may pass any of the orders contemplated by sub-section (4) of section 8.

            (2)        The Authority may, with the approval of the Government undertake the execution of any scheme, or exercise technical supervision and administrative and financial control over the execution of any scheme framed or sponsored by any agency in respect of the matters enumerated in sub-section (2) of section 8.

(Ins. by W.P. Ordinance XIII of 1959)[9-A.   Notwithstanding anything contained in this Act the Authority may with the previous approval of the Government, undertake the execution of any scheme framed or sponsored by a Central Government or any agency other than an agency in West  Pakistan, or exercise technical supervision and administrative and financial control over the execution thereof, on such terms and conditions as may be agreed to by the Authority on the one hand and the Central Government or such agency in consultation with the Central Government on the other, as the case may be.]

10.        Survey and experiments.— The Authority, if it considers this necessary or expedient for carrying out the purposes of this Act, may:—

        (a)  cause studies, surveys, experiments or technical research to be made; or

        (b)  contribute towards the cost of any such studies, surveys, experiments or technical research made by any other agency.

 

              (Ins. by W.P. Ordinance XIII of 1959)[10-A.          On and from such date as the Government may by notification, declare and subject to such terms and conditions as it may determine, all assets including lands, works, machinery, apparatus, material and plants vested in the Government in the Electricity Department shall vest in the Authority, and all liabilities in respect of the said assets shall be the liability of the Authority.]

              11.      Control over waters, power houses and grids.— (1) Subject to the provisions of any other law for the time being in force, the Authority:—

           (i) shall have control over the:

               (a)  underground water resources of any region in West Pakistan;

(b)    operation of all power houses and grids, including such ancillary works as may be considered necessary for their proper operation;

          (ii) may make recommendations to the Government for prescribing standards for the:

               (a)  operation and maintenance of all irrigation works;

               (b)  maintenance of power houses and grids;

(iii)may make recommendations to the Government for promoting simplification of methods of charge for supplies of electricity and standardisation of the system of supply;

(iv)            may, with the prior approval of the Government and on payment of reasonable compensation, declare any power generating station belonging to a Licensee to be a controlled station and thereupon, the power to regular production from such station, shall vest in the Authority;

(v)         may require the owner of any controlled power generating station in a grid area to:

(a)    supply to the grid all or part of the power generated at the station at such rates as may be determined by the Government by general or special order;

(b)    take from the grid all or part of the power required for distribution to consumers; or

(c)    close down the station on payment of reasonable compensation.

            (2)        Before the Authority exercises any control under clause (i) of sub-section (1), the area over which and the extent to which control is intended to be exercised shall be agreed to and notified by the Government in the official Gazette.

            (3)        Nothing in this section shall entitle the Authority to exercise any power in respect of works, power houses or grids owned by the (Subs for the words “Federal Government” by WPA Order, 1964, S. 2(1) Sch. Part VIII)[Central Government] and established for the exclusive use of any Department of the Central Government or a Military Cantonment.

12.        Authority to have powers and obligations of licensee under Act IX of 1910.— The Authority shall, for the purposes of the Electricity Act, 1910, be deemed to be a licensee and shall have all the powers and discharge all the obligations of a licensee under the said Act:

            Provided that nothing in sections 3 to 11, sub-sections (2) and (3) of section 21 and sections 22, 23 and 27 or in clauses I to XII of the Schedule to the said Act relating to the duties and obligations of a licensee shall apply to the Authority.

 

COMMENTS

        Electricity, Licensee. Water and Power Development Authority in fact is deemed to be a Licensee by fiction of law, but factually it is not required to obtain a licence under the Electricity Act, 1910. Charge of maximum price as fixed by the Government of a Province by Licensee. Obligation to charge up to maximum price by WAPDA for the supply of energy, which may be fixed by the Government of a Province, stands excluded by virtue of Ss. 3 to 11, 21(2), (3), 22, 23, 27 & Cls. (I) to (XII) of the Schedule to Electricity Act, 1910.(1997 SCMR 641)

 

        Contended that demand of fuel adjustment charges, income-tax and late payments are illegal. Held: Fuel adjustment charges are fully covered by “operational costs” inasmuch as thermal generation is necessary to supplement hydro-electric generation to meet consumers demand. As regards income-tax Authority is authorized to fix rate which includes payment of necessary tax and even otherwise consumer, who pays amount of income-tax is also entitled to deduct amount from payable income-tax at time of filing of yearly return. It cannot be said that demand of income-tax as contained in bill is in any manner illegal or otherwise, unauthorized. As regards demand of late payment in bill, amount is only payable if consumers fails to deposit bill amount within stipulated period. All aforementioned three demands are lawful. Petition dismissed.(PLJ 1997 Lah. 306 (DB)

        Whether the respondent authority has power to increase in tariff of electricity, fuel adjustment charges, surcharge and additional surcharge. Admittedly electricity is on the concurrent legislative list and hence the Federal Government as well as the Provincial Government can legislate on the subject. Article 157 of the Constitution is attracted where Province gets supply of electricity in bulk from the national grid for transmission and then distribute itself within the Province. WAPDA is supplying and distributing electricity amongst consumers of various Provinces and not Provincial Governments. Proviso to Section 12 specifically excludes application of various provisions of Electricity Act which are relatable to fixation of price of electricity. Section 25 is a special provision governing fixation of price of electricity by WAPDA. Held: That Authority is authorized to fix rate for sale of power, with prior approval of Federal Government within parameters as mentioned in section 25 of the WAPDA Act, 1958. Petition dismissed.(PLJ 1997 Lah. 306 (DB)

        Government  of Province under section 3(2)(d)(i) read with section 23 and para XI, Schedule of Electricity Act, 1910, while granting a licence to a Licensee under terms of licence may provide that Licensee would not charge for energy more than maximum price fixed under licence. However, under section 12 of West Pakistan Water and Power Development Authority Act, WAPDA is deemed to be a Licensee under Electricity Act, 1910 and shall have all powers and discharge all obligations of a Licensee under said Act but because of proviso to above section 12 duties and obligations contained in sections 3 to 11, sub-sections (2) and (3) of section 21 and sections 22, 23 and 27 or in clause (I) to (XII) of the Schedule to Electricity Act, 1910 shall not be attracted to WAPDA. In other words, obligation to charge up to maximum price for supply of energy, which may be fixed by Government of a Province, stands excluded by virtue of above exclusion of application of above provisions of Electricity Act, 1910. In fact WAPDA is deemed to be a Licensee by fiction of law, but factually it is not required to obtain a licence under Electricity Act.(PLJ 1997 SC 739)

 

            13.            Powers regarding certain matters.— (1) The Authority may take such measures and exercise such powers as it considers necessary or expedient for the carrying out of the purposes of this Act.

            (2)        Without prejudice to the generality of the power conferred by the preceding sections and the provisions of sub-section (1) of this section, the Authority may for carrying out the purposes of this Act:—

              (a)  undertake any works, incur any expenditure, procure plant, machinery and materials required for its use and enter into and perform all such contracts as it may consider necessary or expedient;

              (b)  acquire by purchase, lease, exchange or otherwise and dispose of by sale, lease, exchange or otherwise any land or any interest in land;

              (c)  place wires, poles, wall brackets, stays, apparatus and appliances for the transmission of electricity or for the transmission of telegraphic or telephonic communications necessary for the proper execution of a scheme;

              (d)  direct the owners of private lands to—

                       (i) carry out measures for training of streams;

                      (ii) undertake anti-erosion operations, including conservation of forests and re-afforestation;

              (e)  restrict or prohibit by general or special order the clearing and breaking up of land in the catchment area of any river;

              (f)   direct that any work which has been required to be done by any person under the two preceding clauses, and which remains undone, shall, after due notice to such person and consideration of any objection raised by him, be executed by the Authority and specify the proportion in which the risk and expense of such work shall be borne by such person, or by any other person who, after being given a reasonable notice and after such inquiry as the Authority considers necessary, is held by the Authority to be responsible for the execution of such work in whole or in part; and

              (g)  seek and obtain advice and assistance in preparation or execution of a scheme from any local body or agency of the Government, and such local body or agency shall give the advice and assistance sought by the Authority to the best of its ability, knowledge and judgement:

            Provided that the Authority shall pay the cost of such advice and assistance if the giving of such advice and assistance entails additional expenditure to the local body or the agency.

            (3)        The acquisition of any land or any interest in land for the Authority under this section, or for any scheme under this Act, shall be deemed to be an acquisition for a public purpose within the meaning of the Land Acquisition Act, 1894, and the provisions of the said Act shall apply to all such proceedings.

 

COMMENTS

        Determination of tariff for supply of electricity to consumers by WAPDA. WAPDA being a Licensee by fiction of law can invoke inter alia S. 23 of the West Pakistan Water and Power Development Authority Act, 1958 for determining tariff for supply of electricity without being subject to the other provisions of Ss. 3 to 11, 21(2)(3), 22, 27 and Sched. Cls. (i) to (vii) of the said Act.(1997 SCMR 641)

        Levy of surcharge and additional surcharge, by WAPDA on supply of electricity to consumers. Word “surcharge”, Connotation. Word “surcharge” cannot be read in isolation but has to be construed in the context in which it is employed. Surcharge and additional surcharge are in substance part of electricity tariff and are not taxes. Use of word “levy” will not change the nature of charge, the same is to be ascertained on the basis of the facts as a whole and attending circumstances. (1997 SCMR 641)

        Sub-section (1) of section 13 of Act provides that Authority (i.e. WAPDA) may take such measures and exercise such powers as it considers necessary or expedient for carrying out purpose of Act. Whereas section 12 lays down that  Authority shall for purposes of Electricity Act, 1910, be deemed to be a Licensee and shall have all powers and discharge all obligations of Licensee under said Act. However proviso to above sub-section provides that nothing in sections 3 to 11, sub-section (2) and (3) of section 21, sections 22, 23 and 27 or in clauses (i) to (vii) of Schedule to said Act relating to duties and obligations of a Licensee shall apply to Authority. Effect of above proviso is that a Provincial Government cannot provide maximum limit for charging electricity tariff by WAPDA which it can impose while granting a licence under above Act to Licensee. WAPDA being a licensed by fiction of law can invoke inter alia section 23 for determining tariff for supply of electricity without being subject to above restrictions. Sub-section (2) of section 25 of Act expressly empowers WAPDA to fix rates of electricity.(PLJ 1997 SC 739)

        14.                        Right of entry.— (1) The Chairman or any person authorised by him in writing, may enter upon and survey any land, erect pillars for the determination of intended lines of works, make borings and excavations and do all other acts which may be necessary for the preparation of any scheme:

Provided that when the affected land does not vest in the Authority, the power conferred by this sub-section shall be exercised in such manner as to cause the least interference with, and the least damage to, the rights of the owner thereof.

            (2)        When any person enters into or upon any land in pursuance of sub-section (1), he shall, at the time of entering or as soon thereafter as may be practicable, pay or tender payment for all necessary damage to be done as aforesaid, and in case of dispute as to the sufficiency of the amount so paid or tendered, the dispute shall be referred to the Deputy Commissioner of the district whose decision shall be final.

 

        15.            Sanction of the Government.— A scheme framed and sanctioned under this Act may be amended or modified by the Authority at any time, but if a material change is made in the scheme, previous sanction of the Government shall be obtained.

 

            Explanation— An increase in the cost of the scheme by more than fifteen per cent of the sanctioned cost, or a change in the benefit and cost ratio which either makes the cost component in the ratio exceed the benefits or reduces the benefits component by more than fifteen per cent shall be deemed to be a material change for the purpose of this section.

 

        16.            Arrangements with local body or other agency.— (1) As soon as any scheme has been carried out by the Authority or at a later date, the Authority may arrange by a written agreement with a local body or other agency within whose jurisdiction any particular area covered by the scheme lies, to take over and maintain any of the works and services in that area. If the Authority fails to obtain the assent of such a local body or other agency, it may refer the matter to the Government and the Government may give such directions to the local body or the other agency as it may deem fit.

            (2)        The Government shall have the power to direct the Authority to hand over any scheme other than a power scheme or the power part of a multi-purpose scheme carried out by it to any agency of the Government or a local body. In such a case the Authority shall be entitled to receive credit to the extent of the audited expenditure incurred by it on that scheme.

 

CHAPTER IV

ESTABLISHMENT

        17.                        Employment of officers and servants.— (1) The Authority may from time to time employ such officers and servants, or appoint such experts or consultants, as it may consider necessary for the performance of its functions, on such terms and conditions as it may deem fit:

(See Electricity Act, 1919)[Provided that all persons serving in connection with the affairs of the Province in the Electricity and Irrigation Department shall be liable to serve under the Authority, if required to do so by the Government on such terms and conditions as the Government may, in consultation with the Authority, determine but shall not be entitled to any deputation allowance:

            Provided further that the Government may in relation to any such person as aforesaid delegate such administrative, disciplinary and financial powers to the Authority as the Government may deem fit:

            Provided also that the terms and conditions of service of any such person as aforesaid shall not be varied by the Authority to his disadvantage.]

            (Ins. by Federal Act, LXXXIV of 1975)[(1-A)           Notwithstanding anything contained in sub-section (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.

            (1-B)     Service under the Authority is hereby declared to be service of Pakistan and every person holding a post under the Authority, not being a person who is on deputation to the Authority from any Province, shall be deemed to be a civil servant for the purposes of the Service Tribunals Act, 1973 (LXX of 1973).]

            (2)        The Chairman in case of urgency, may appoint such officers and servants on such terms and conditions as may be necessary:

[Explanation I.— For the purpose of this sub-section any person employed by, or serving under the Authority includes a person referred to in the provisos to sub-section (1).

            Explanation II.— Any person referred to in the provisos to sub-section (1) who is removed or retired from service by the Authority under this sub-section shall stand reverted to the Province to which he is allocated under the Province of West Pakistan (Dissolution) Order, 1970 (P.O. No.1 of 1970).] (added by Ordinance LXXII of 1979)

            (added by Ordinance LXXII of 1979)[(1-C)   Any order of removal or termination of service passed by the Authority, in exercise of the powers conferred by sub-section
(1-A), shall not be called in question in any proceedings taken under the Industrial Relations Ordinance, 1969 (XXIII of 1969), or the Essential Services (Maintenance) Act, 1952 (III of 1952), or under any law for the time being in force, before any Court, Tribunal or Commission and any order passed by any Court, Tribunal or Commission after the thirtieth day of September, 1975, and before the coming into force of the West Pakistan Water and Power Development Authority (Amendment) Ordinance, 1979, setting aside or modifying or declaring any order of the Authority to be void and of no effect, shall stand vacated.]

            Provided that every appointment made under this sub-section shall be reported to the Authority without unreasonable delay.

            (Sub-section (3) added by WP Ordinance XX of 1964 was omitted by WP Statutory Bodies (Appointment and Removal of Legal Advisors) Ordinance (XXXII of 1965). The WP Ordinance XXXII of 1965 has itself been repealed by WP Ordinance XI of 1969)[(3)      Notwithstanding anything contained in sub-sections (1) and (2), no person shall be appointed to the post of legal advisor to the Authority, by whatever designation called or known, or to advise the Authority, in regard to legal matters save with the approval of Government and no legal practitioner shall be entrusted by the Authority with any matter pending in any Civil, Revenue or Criminal Court or a Tribunal exercising civil or revenue powers in which the Authority is a party or has any interest unless the name of such legal practitioner is on the approved list of Government.]

COMMENTS

            Removal from service power u/s. 17(1A). Exercise, in case of employee whose services were transferred by Government to WAPDA vide notification dated 28.3.1959. Not warranted. Such employee serves as a Government employee. He is not governed by WAPDA Act for all internets and purposes and WAPDA, as such, lacks complete control and authority over him. Notification dated 27.5.1966 and 30.6.1970 do not change basic status and deposition (Government service) of such employee. Words “serving under the Authority in sub-section (1A) do not include an employee who at starting point of his employment was a Government servant but whose services were transferred to WAPDA, vide notification dated 28.3.1959. Order of WAPDA removing such employee in exercise of its power u/s. 17(1A) void ab initio.(NLR 1978 Service Lah. 363, NLR 1979 Labour Lah. 102)

            Power of summary dismissal u/s. 17A. Not available to save a service termination” order passed in disregard of requirements of WAPDA Employees (Efficiency and Discipline) Rules (1975).(NLR 1978 Service Tr. (Fed) 139)

            WAPDA employee when being deprived of his vested right to continue in service would be entitled to right of hearing before premature retirement against him.(NLR 2002 Service SC 73)

            Summary power of dismissal u/s. 17(1A). Does not empower WAPDA to dismiss a permanent employee on ground of bad reputation and misconduct without domestic inquiry and show cause notice.(NLS 1978 Labour Ct.(Pb) 202)

            Employee of WAPDA. Not a civil servant. Jurisdiction of Service Tribunal not available. Such employee can have resort to Labour Court for redress of his grievance. (NLS 1978 Labour Ct.(Pb) 202)

            Premature retirement of WAPDA employee before completion of qualifying service. WAPDA employee is entitled to right of hearing in view of principle of natural justice enshrined on audi alteram partem although right of hearing is not conferred expressly by S. 17(1A). Judgment of Federal Service Tribunal setting aside retirement order on ground that employee was not given right of hearing affirmed as unexceptionable by Supreme Court by refusing its leave to appeal against judgment of Service Tribunal.(NLR 2002 Service SC 73)

            Employee of WAPDA. Disciplinary proceedings. Employee’s grievance application against his suspension and disciplinary proceedings was entertained by Labour Court, overruling objection to its jurisdiction. Labour Appellate Tribunal in appeal set aside such order of Labour Court. High Court in its Constitutional jurisdiction maintained order of Labour Appellate Tribunal. Validity. Perusal of reliefs which were sought by employee before Labour Court by filing application under S. 25-A. Industrial Relation Ordinance, 1969 indicated that he wanted to nullify disciplinary proceedings which were initiated against him by Authority. Even there would not have been S. 17(1A) in the Act to oust jurisdiction of Labour Court, such application would have been misconceived under S. 25-A. Industrial Relations Ordinance, 1969. Such application, even on merits could not have been entertained. Leave to appeal was refused in circumstances.(1998 SCMR 1203)

            WAPDA, after amendment of S. 17(1A), is competent to remove an employee from service through recourse to provisions of S. 17(1A) provided the removal does not carry with it any stigma on concerned employee and grounds of removal are such that they could be determined within ambit of procedure prescribed under S. 17(1A).(1998 SCMR 231)

            WAPDA cannot have resource to S. 17(1A) for removal of an employee from service where removal carries stigma on concerned employee. (1998 SCMR 231)

            Action of Authority u/s. 17(1A) can be successfully challenged before Service Tribunal and Supreme Court on ground of mala fide, coram non judice aand lack of bona fides. (1998 SCMR 231)

            Applicability, scope and interpretation of S. 17(1A) as it existed before its amendment by Act XIII of 1994. Conclusion and ratio decidendi of Supreme Court cases on subject reiterated.(1998 SCMR 231)

            (As existed before its amendment by Act XIII of 1994). Order passed by Authority u/s. 17(1A) if not bona fide, tainted with bias or mala fides could he interfered with by Service Tribunal on appeal u/s. 4, Service Tribunal Act, 1973. (1998 SCMR 231)

            Employee of WAPDA. Charge sheet against such employee. National Industrial Relations Commission setting aside charge-sheet leveled by Authority against employee. Authority proceeded against employee, notwithstanding, order of National Industrial relations Commission whereby charge-sheet had been set aside. Service Tribunal did not interfere in order of dismissal of employee. Validity. Leave to appeal was granted to consider petitioner’s contention that charge sheet on basis whereof he was dismissed from service having been set aside by National Industrial Relation Commission, whether all the proceedings taken and dismissal order passed on basis of allegations made in that charge sheet were of no legal effect.(1998 SCMR 266)

            Compulsory retirement from service. Employee’s departmental appeal was accepted to the extent that he was reinstated in service but period intervening between his compulsory retirement and reinstatement was treated as extraordinary leave without pay and without back benefits. Employee’s appeal before Service Tribunal claiming back benefits for period in question, did not meet with success. Validity. Employee’s contention was that impugned order of Appellate Authority withholding pay and back benefits for the period during which his appeal remained pending was wholly unjustified, that his appeal having been accepted, he was entitled to all back benefits from the date of his compulsory retirement up to the date of his reinstatement. Leave to appeal to Supreme Court was granted to consider contentions raised by employee.(1998 SCMR 257)

            Discretion available to WAPDA u/s. 17(1A) to dispense with services of an employee has not been taken away by amendment of 1994. Amendment introduced in S. 19(1A) by Act XIII of 1994, has the effect of only circumscribing discretion of WAPDA by providing a different procedure of removal of employee from service. Underlying object of S. 17(1A) even after its amendment by Act XIII of 1994 remains unchanged and WAPDA still has discretion to dispense with service of an employee through recourse of S. 17(1A) provided removal did not carry with it any stigma and procedure laid down in S. 17(1A is strictly followed by WAPDA. (1998 SCJ 231)

            Contention of employees that after amendment in language of S. 17(1A), a detailed enquiry is must in every case of removal of an employee from service u/s. 17(1A) does not appear to be correct. Similarly, contention of employees that where in first instance WAPDA elected to proceed under WAPDA Employees (Efficiency and Discipline) Rules, 1978, it could not take action u/s. 17(1A) as devoid of force.(1998 SCMR 231)

            Remand of case by Service Tribunal. Validity. Employees of WAPDA were removed from service on charges of various misconducts on basis of inquiry report, copy whereof was not supplied to employees nor they were associated with such inquiry. Witnesses were examined at the back of employees. Removal of employees form service merely on basis of consideration of their written reply and personal hearing could not be valid exercise of power by Authority under S. 17(1A) of the West Pakistan Water and Power Development Authority Act, 1958, therefore, no exception could be taken to order of remand of case to Authority for fresh disposal in accordance with law. Such discretion having been exercised by Authority/Tribunal which was vested with such discretion, no interference would be warranted therein.(1998 SCMR 137)

            WAPDA enjoys under S. 17(1A) right to retire any of its employees from his service without assigning any reason. However, if from perusal of record it can be spelled out that such action is being taken against him in exercise of jurisdiction in a colourful manner with mala fide intention, then it becomes all the more necessary to extend right of hearing to an affectee employee.(NLR 2002 Service SC 73)

            Premature retirement of WAPDA employee in exercise of power under S. 17(1A). Its consequences and repercussions highlighted in the judgment.(NLR 2002 Service 73).

            Employee of WAPDA. Transfer of employee was found to be mala fide. Validity. Controversy raised in case was concluded by finding of fact recorded by Service Tribunal to the effect that order of transfer of employee was mala fide. Such finding of fact arrived at by Service Tribunal upon proper consideration of relevant material on record could not be interfered with by Supreme Court, in absence of anything on record to show any misreading or disregard of any material evidence on record. Petitioner ws unable to show any error in appreciation of evidence by Service Tribunal. No question of law of public importance being involved therein, impugned order was unexceptionable. Leave to appeal was refused in circumstances.(1998 SCMR 2324)

            Employee of WAPDA. Order of removal or retirement simpliciter. Effect. Where impugned order of removal or retirement was simpliciter and same was not tainted with any mala fide, factum that Authority before passing of such order had satisfied departmental disciplinary proceedings, would not render that order in any way legally defective. Impugned order being not simpliciter in terms of S. 17(1A) of the Act but having been founded on show-cause notice and employee’s reply to the same, order in question was tainted with stigma. Order of removal of employee was set aside and employee was reinstated with back benefits. Authority in terms of amended S. 17(1A) of the Act was however, obliged to inform its employees in writing of the ground on which action was proposed to be taken and to give him opportunity to show cause in writing against such action within period of fourteen days. Authority would have option to pass fresh order against employee in accordance with amended provision of S. 17(1A). West Pakistan Water and Power Development Authority Act, 1958. (1998 SCMR 1445)

            Salary. Employee of Water and Power Development Authority. Entitlement to receive higher salary during that period when he worked on higher post. Leave to appeal was granted to consider whether employee was entitled to receive higher salary during the period when he worked on higher post in view of judgment of Supreme Court reported as Federation of Pakistan V. Shahzada Shahpur Jan and 2 others1986 SCMR 991 (1998 SCMR 2614)

            Employee working on higher post during specified period/Entitlement to salary of such post. Employee had admittedly worked on higher post; therefore, he was entitled to higher salary for the period during which he discharged duties and functions of such post. Authority was directed by Supreme Court to pay difference of salary for the period during which employee was posted on higher post while he was receiving pay of lower post. (1998 SCMR 2614)

            Employee of WAPDA. Removal from service after service of notices charging them with embezzlement/misappropriation of public money. Service Tribunal remanded case of reconsideration, inter alia, on ground that when employee was proceeded against in respect of inefficiency, indiscipline and misconduct, he could only proceeded against under Pakistan Water and Power Development Authority (Efficiency and Discipline) Rule, 1978 and that action under S. 17(1A). West Pakistan Water and Power Development Authority Act, 1958, could not be taken against employee. Validity. Leave to appeal having been granted by Supreme Court in other cases to examine scope and true import of provision of S. 17(1A), West Pakistan Water and Power Development Authority Act, 1958, leave to appeal was also granted in present petition which would be heard alongwith connected appeals. (1998 SCMR 231)

            Employee of Water and Power Development Authority. Transfer. Validity. Employee had raised question of transfer before completion period of tenure which was duly considered and rightly repelled by Service Tribunal. Employee having never raised any plea of mala fides or victimization in his representation before Departmental Authorities could not be allowed to raise such point before Supreme Court. Service Tribunal had rightly found after appraisal of material available before it that transfer order was made for administrative reason in public interest and not for extraneous considerations. Employee was liable to be transferred anywhere in exigencies of service, having no vested right of his choice for a specific place. Employee, additionally, had continued to serve for period of about 5 years before his transfer was ordered. Employee, therefore, could not plead hat he was prematurely transferred. Employee was not holding tenure post, therefore, his transfer from place “Q” to “L” was not violative of principles laid down for transfer of employees. Leave to appeal was refused in circumstances. (1998 SCMR 1293)

            Employee of Authority. Removal from service on basis of summary inquiry. Service Tribunal setting aside orders of employees’ removal giving option to Authority either to proceed against them under Efficiency and Discipline Rules or even under S. 17(1A). West Pakistan Water and Power Development Authority Act, 1958. Validity. Contention raised against decision of Service Tribunal was that charges leveled against employees were dully substantiated by report of preliminary inquiry which was placed on record of appeal but same had been illegally ruled out of consideration by Service Tribunal, that Service Tribunal on one hand took view that summary proceedings under S. 17(1A), West Pakistan Water and Power Development Authority Act, 1958, adversely reflected on bona fides of Authority but on the other hand while remaining case left it open to Authority to proceed against respondents under same provision; and that such view had rendered decision of Service Tribunal self-contradictory. Contentions raised by petitioners needed examination. Leave to appeal to Supreme Court was granted to petitioners for consideration of contentions raised by them. (1998 SCMR 81)

            Constitutional petition. Employment in Water and Power Development Authority. High Court, jurisdiction of. Scope. Service matters regarding employees of the Authority cannot be adjudicated by High Court in exercise of jurisdiction under Art. 199 of the Constitution due to bar contained in Art. 212(3) of the Constitution.(2002 PLC(CS) 25

            Employee working on higher post during specified period. Entitlement to salary of such post. Employee had admittedly worked on higher post, therefore, he was entitled to higher salary for the period during which he discharged duties and functions of such post. Authority was directed by Supreme Court to pay difference of salary for the period during which employee was posted on higher post while he was receiving pay of lower post.(1998 SCMR 2614)

            Employee of WAPDA. Disciplinary proceedings. Employee’s grievance application against his suspension and disciplinary proceedings was entertained by Labour Court, overruling objection to its jurisdiction. Labour Appellate Tribunal in appeal asset aside such order of Labour Court. High Court in its Constitutional jurisdiction maintained order of Labour Appellate Tribunal. Validity. Perusal of reliefs which were sought by employee before Labour Court by filing application under S. 25-A, Industrial Relations Ordinance, 1969, indicated that he wanted to nullify disciplinary proceedings which were initiated against him by Authority. Even there would not have been S. 17(1A), in the Act to oust jurisdiction of Labour Court, such application would have been misconceived under S. 25-A. Industrial Relations Ordinance, 1969.Such application, even on merits could not have been entertained. Leave to appeal was refused in circumstances.(1998 SCMR 1203)

Suspension. Challenge to. Validity. Adequate alternate remedy available to civil servant. Non-availing of such remedy by civil servant. Status. Satisfaction of High Court that no other adequate remedy provided in law was available to aggrieved party, was condition precedent for exercise of jurisdiction under Art. 199 of the Constitution. Authority was competent to take cognizance of line losses and decision to place petitioner under suspension and issue notice under S. 17(1A) of the Act. Authority having initiated proceedings against civil servant for his misconduct and having kept him under suspension, civil servant would have option to invoke remedies provided for under relevant statute. Civil servant could not at his sweet will switch over to invoking Constitutional jurisdiction of High Court during continuance of disciplinary proceedings, in absence of any compelling and justifiable reasons. Civil servant was directed to seek his remedy from Authority. Constitutional petition during continuance of disciplinary proceedings being immature, was dismissed.(PLJ 1997 Lah. 1826)

            Disciplinary proceedings. Employee’s grievance application was entertained by Labour Court, overruling objection to its jurisdiction. Labour Appellate Tribunal in appeal set aside such order. High Court in its Constitutional jurisdiction maintained order of Labour Appellate Tribunal. Challenge to. Perusal of reliefs which were sought by employee before Labour Court by filing application under S. 25-A. Industrial Relations Ordinance, 1969 indicated that he wanted to nullify disciplinary proceedings which were initiated against him. Even if there would not have been S. 17(1A) in the Act to oust jurisdiction of Labour Court, such application would have been misconceived under S. 25-A. Industrial Relations Ordinance, 1969. Such application, even on merits could not have been entertained. Leave to appeal refused.(PLJ 1997 SC 2110)

            Employees of WAPDA. Removal from service after service of notices charging them with embezzlement/misappropriation of public money. Service Tribunal remanded case for re-consideration, inter alia, on ground that when employee was proceeded against in respect of inefficiency, indiscipline and misconduct, he could only be proceeded against under Pakistan Water and Power Development Authority (Efficiency and Discipline) Rules, 1978, and that action under S. 17(1A), West Pakistan Water and Power Development Authority Act, 1958, could not be taken against employee. Validity. Leave to appeal having been granted by Supreme Court in other case to examine scope and true import of provision of S. 17(1A), West Pakistan Water and Power Development Authority Act, 1958, leave to appeal was also granted in present petitions which would be  heard alongwith connected appeals.(1998 SCMR 234)

            Employee of Authority. Removal from service on basis of summary inquiry. Service Tribunal setting aside orders of employees’ removal giving option to Authority either to proceed against them under Efficiency and Disciplinary Rules or even under S. 17(1A), West Pakistan Water and Power Development Authority Act, 1958. Validity. Contention raised against decision of Service Tribunal was that charges leveled against employees were fully substantiated by report of preliminary inquiry which was placed on record of appeal but same had been illegally ruled out of consideration by Service Tribunal, that Service Tribunal on one hand took view that summary proceedings under S. 17(1A), West Pakistan Water and Power Development Authority Act, 1958, adversely reflected on bona fides of Authority but on the other hand while remanding case left it open to Authority to proceed against respondents under same provision; and that such view had rendered decision of Service Tribunal self-contradictory. Contentions refused by petitioners needed examination. Leave to appeal to Supreme Court was granted to petitioners for consideration of contentions raised by them.(1998 SCMR 81)

            Employees of WAPDA. Order of removal or retirement simpliciter. Effect. Where impugned order of removal or retirement was simpliciter and same was not tainted with any mala fide, factum that Authority before passing of such order had initiated departmental disciplinary proceedings, would not render that order in any way legally defective. Impugned order being not simpliciter in terms of S. 17(1A) of the Act but having been founded on show-cause notice and employee’s reply to the same, order in question was tainted with stigma. Order of removal of employee was set aside and employee was reinstated with back benefits. Authority in terms of amended S. 17(1A) of the Act, was however, obliged to inform its employees in writing of the ground on which action was proposed to be taken and to give him opportunity of the ground on which action was proposed to be taken and to give him days. Authority would have option to pass fresh order against employee in accordance with amended provision of S. 17(1A), West Pakistan Water and Power Development Authority Act, 1958.(1998 SCMR 1445)

            Employee of Water and Power Development Authority. Leave to appeal was granted to consider whether West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 would be applicable to employees of WAPDA notwithstanding proviso to S. 1(4)(c), West Pakistan Water and Power Development Authority Act, 1958.(1997 SCMR 1128)

            Constitutional petition. Terms and conditions of service. Delegation of powers to act as “Competent Authority” to initiate disciplinary proceedings against employee of the Authority. Validity. High Court while exercising Constitutional jurisdiction refused to adjudicate the matter as determination of the question would fall under the domain and adjudication of Service Tribunal on account of bar contained in Art. 212(3) of the Constitution. Constitutional petition was dismissed, in circumstances.(2002 PLC (CS) 259)

            Constitutional petition. Issuance of show-cause notice to the employee. Assailing of such notice in Constitutional petition. Maintainability of the petition. Petitioner was employee of Water and Power Development Authority and on the charge of misappropriation of store material, show-cause notice was issued to him. Contention of the petition was that he was employee of the Authority whereas the notice was issued by Officials of Peshawar Electric Supply Corporation, which was not the Competent Authority to issue the notice. Validity. Petitioner was in service of Pakistan and remedy provided under Service Tribunal Act, 1973 was available to him by deeming him to be civil servant. With insertion of S. 2-A in Service Tribunals Act, 1973, the petitioner was not required to wait for the final order and could approach the Tribunal against the letter of explanation and show-cause notice. Constitutional petition was not maintainable in circumstances.(2002 PLC (CS) 259)

            WAPDA employees. Seniority. Petitioner having been declared surplus by one wing of Authority was absorbed in another wing of Authority wherein respondent was also serving. Seniority list prepared by Authority showed respondent to be senior to petitioner. Subsequently, however, petitioner was given seniority with effect from earlier date against which respondent feeling himself aggrieved filed appeal before Service Tribunal Service Tribunal found that petitioner, after having been declared surplus, was absorbed in cadre of respondent and on absorption in that cadre was placed in lowest position and his seniority in such new cadre had to be reckoned from date of absorption. Order of Service Tribunal further showed petitioner’s representation against respondent having been rejected by Authority, such decision was conveyed to him and thereafter, several seniority lists were issued but same were not challenged by petitioner. Reasons given by Service Tribunal for rejection of petitioner’s stand point were cogent. No case was made out for interference with impugned judgment. Leave to appeal was refused in circumstances.(1997 SCMR 7121)

            Employees of WAPDA. Such employee would be civil servant for purposes of Service Tribunals Act, 1973 and notwithstanding applicability of provisions of S.O. 15, West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, matters and grievances with regard to terms and conditions of service were to be taken before Service Tribunal which on basis of provisions of S. 17(1-B) & (1-C), West Pakistan Water and Power Development Authority Act, 1958 would have exclusive jurisdiction. Order of removal or termination of service passed under S. 17(1-A) of the Act, in respect of employee of Authority, could not be called into question under Industrial Relations Ordinance, 1969 or Pakistan Essential Services (Maintenance) Act, 1952 or under any other law for the time being in force, before any Court, Tribunal or Commission, for Service Tribunal has been conferred exclusive jurisdiction in that respect. Such order could be assailed only before Service Tribunal.(1997 SCMR 2060)

            Quantum of change brought about by amended S. 17(1-A) of the Act. Provision of S. 17(1-A) as amended though did not take away discretion of Authority completely to remove its employees, yet the same did have effect of curtailing such discretion. Comparison of S. 17(1-A) of the act as it stood before amendment and after amendment with special reference to removal of employee elucidated.(1998 SCMR 137)

            Remand of case by Service Tribunal. Validity. Employees of WAPDA were removed from service on charges of various misconducts on basis of inquiry report, copy whereof was not supplied to employees or they were associated with such inquiry. Witnesses were examined at the back of employees. Removal of employees from service merely on basis of consideration of their written reply and personal hearing could not be valid exercise of power by Authority under S. 17(1-A) of the West Pakistan Water and Power Development Authority Act, 1958, therefore, no exception could be taken to order of remand of case to Authority for fresh disposal in accordance with law. Such discretion having been exercised by Authority/Tribunal which was vested with such discretion, no interference would be warranted therein.(1998 SCMR 137)

            Employee of Water and Power Development Authority. Transfer. Validity. Employee had raised question of transfer before completion period of tenure which was duly considered and rightly repelled by Service Tribunal. Employee having never raised any plea of mala fides or victimization in his representation before Departmental Authorities could not be allowed to raise such point before Supreme Court. Service Tribunal had rightly found after appraisal of material available before it, that transfer order was made for administrative reason in public interest and not for extraneous considerations. Employee was liable to be transferred anywhere in exigencies of service, having no vested right of his choice for a specific place. Employee, additionally, had continued to serve for period of about 5 years before his transfer was ordered. Employee, therefore, could not plead hat he was prematurely transferred. Employee was not holding tenure post, therefore, his transfer from place “Q” to “L” was not violative of principles laid down for transfer of employees. Leave to appeal was refused in circumstances.(1998 SCMR 1293)

Salary. Employee of Water and Power Development Authority. Entitlement to receive higher salary during that period when he worked on higher post. Leave to appeal was granted to consider whether employee was entitled to receive higher salary during the period when he worked on higher post in view of judgment of Supreme Court reported as Federation of Pakistan V. Shahzada Shahpur Jan and 2 others1986 SCMR 991.(1998 SCMR 2614)

            Leave to appeal was granted to determine scope of S. 17(1-A), West Pakistan Water and Power Development Authority Act, 1958, especially after it was amended by Act XIII of 1994.(1998 SCMR 137)

            Provisions of S. 17(1A)(a) are not violative of Arts. 2A, 4, 9, 14, 25, 37(e), 38(b) nor are they repugnant to Injunctions of Islam or principles of natural justice. Writ petitions filed to challenge vires of S. 17(1A)(a) on this ground dismissed by High Court.(NLR 2002 Service Lah. 80)

            Transfer. Employee of WAPDA. Transfer of employees was found to be mala fide. Validity. Controversy raised in case was concluded by finding of fact recorded by Service Tribunal to the effect that order of transfer of employee was mala fide. Such finding of fat arrived at by Service Tribunal upon proper consideration of relevant material on record could not be interfered with by Supreme Court, in absence of anything on record to show any misreading or disregarded on any material evidence n record, Petitioner was unable to show any error in appreciation of evidence by Service Tribunal. No question of law of public importance being involved therein, impugned order was unexceptionable. Leave to appeal was refused in circumstances.(1998 SCMR 2324)

            Employee of WAPDA. Charge-sheet against such employee. National Industrial Relations Commission setting aside charge-sheet leveled by Authority against employee. Authority proceeded against employee, notwithstanding, order of National Industrial Relations Commission whereby charge-sheet had been set aside. Service Tribunal did not interfere in order of dismissal of employee. Validity. Leave to appeal was granted to consider petitioner’s contention that charge-sheet on basis whereof he was dismissed from service having been set aside by National Industrial Relations Commission, whether all the proceedings taken and dismissal order passed on basis of allegations made in that charge-sheet were of no legal effect.(1998 SCMR 266)

            Compulsory retirement from service. Employee’s departmental appeal was accepted to the extent that he was reinstated in service but period intervening between his compulsory retirement and reinstatement was treated as extraordinary leave without pay and without back benefits. Employee’s appeal before Service Tribunal claiming back benefits for period in question, did not meet with success. Validity. Employee’s contention was that impugned order of Appellate Authority withholding pay and back benefits for the period during which his appeal remained pending was wholly unjustified, that his appeal having been accepted, he was entitled to all back benefits from the date of his compulsory retirement up to the date of his reinstatement. Leave to appeal to Supreme Court was granted to consider contentions raised by employee.(1998 SCMR 257)

 

18.        Recruitment and conditions of service and disciplinary powers.— The Authority shall prescribe the procedure for appointment, and terms and conditions of service of its officers and servants, and shall be competent to take disciplinary action against its officers and servants.

 

19.        Immunity of the Authority and its employees.— (1) The Chairman, Members, officers and servants of the Authority shall, when acting or purporting to act in pursuance of any of the provisions of this Act, be deemed to be public servants within the meaning of section 21 of the Pakistan Penal Code.

(2)        No suit, prosecution or other legal proceedings shall lie against the Authority, the Chairman, Members or officers and servants of the Authority in respect of anything done or intended to be done, in good faith under this Act.

20.        Delegation of powers to Chairman, etc.— The Authority may by general or special order delegate to the Chairman, a Member, or officer of the Authority, any of its powers, duties or functions under this Act subject to such conditions as it may think fit to impose.

 

CHAPTER V

REPORTS AND STATEMENTS

 

21.        Submission of yearly reports and returns, etc.— (1) The Authority shall submit to the Government, as soon as possible after the end of every financial year but before the last day of 17 (September) next following a report on the conduct of its affairs for that year.

            (2)        A copy of the report mentioned in sub-section (1), together with a copy of the audit report referred to in section 28 shall be placed by the Government before Provincial Assembly of West Pakistan (Subs. by W.P. Ordinance XII of 1960)[and the Provincial Assembly shall refer the same to its Committee on Public Accounts for scrutiny and examination.]

            (These words were added by W.P. Amending Act No. XIII of 1967, See Gazette of West Pakistan, Extraordinary, 29^th July, 1967)[(2-A)          The Committee on Public Accounts shall scrutinise and examine the reports referred to it under sub-section (2) in the same manner as, and shall in respect thereof, perform the same functions and exercise the same powers as are required by it to be performed and exercised in respect of appropriation accounts of the Provincial Government and the report of the Comptroller and Auditor-General of Pakistan thereon.]

            (3)        The Government may require the Authority to furnish it with–

               (i)  any return, statement, estimate, statistics or other information regarding any matter under the control of the Authority, or

               (ii)  a report on any such matter, or

              (iii)  a copy of any document in the charge of the Authority, and the Authority shall comply with every such requisition.

 

CHAPTER VI

FINANCE

 

22.        Authority Fund.— (1) There shall be a fund to be known as the “Authority Fund” vested in the Authority which shall be utilised by the Authority to meet charges in connection with its functions under this Act including the payment of salaries and other remunerations to the Chairman and Members of the Authority and to its officers and servants.

            (2)        The Authority Fund shall consist of–

                 (a)  grants made by the Government;

                 (b)  loans obtained from the Government;

                 (c)  grants made by local bodies as required by the Government;

                 (d)  sale-proceeds of loads issued by the Authority or Government;]

                 (e)  loans obtained by the Authority with the special or general sanction of the Government;

                  (f)  foreign aid and loans obtained from the International Bank of Reconstruction and Development or otherwise, with the sanction of and on such terms and conditions as may be approved by the Government; and

                 (g)  all other sums receive by the Authority.

 

23.        Authority to be deemed to be a local authority.— The Authority shall be deemed to be a local authority under the Local Authorities Loans Act, 1914, for the purpose of borrowing money under the said Act, and the making and execution of any scheme under this Act shall be deemed to be a work which such Authority is legally authorised to carry out.

24.        Limited liability.— The liability of the Government to the creditors of the Authority shall be limited to the extent of grants made by the Government and the loans raised by the Authority with the sanction of the Government.

 

25.        Rates for sale of power.— (1) The Authority shall ordinarily sell power in bulk.

            (2)        The rates at which the Authority shall sell power shall be so fixed as to provide for meeting the operating costs, interest charges and depreciation of assets; the redemption at due time of loans other than those covered by depreciation, the payment of any taxes and a reasonable return on investment.

 

COMMENTS

            Tariff of supply of electricity to consumers. Concession given can be withdrawn provided requirements of law are complied with.(1997 CLC 641)

            Tariff of supply of electricity to consumers. Surcharge and additional surcharge or an increase in tariff by WAPDA has to have nexus with the supply of electricity and the supply charge within the framework and limitations provided in S. 25(2) of the Act. Any levy or imposition which does not meet such requirement will have no legal sanction and cannot be termed as reasonable levy.(1997 CLC 641)

            Argument that under sub-section (1) of section 25 of Act, it has been provided that WAPDA shall ordinarily sell power in bulk. It was incumbent on WAPDA to have shown special reasons as to why it had started transmitting and distributing electricity directly to consumers. Word “ordinarily” inter alia carried meaning as “usually”, “commonly”, mostly and “normally” etc.  It does admit acting/doing thing otherwise than as above. In other words WAPDA is not totally prohibited under sub-section (1) of section 25 of Act from transmitting and distributing electricity directly to consumers. Above provision is to be read with sub-clause (ii) of sub-section (2) of section 8 of Act. WAPDA has power to determine tariff for electricity from time to time within parameters laid down in sub-section (2) of section 25 of Act.(PLJ 1997 SC 739)

            Determination of tariff for supply of electricity to consumers by WAPDA. Reduction of 50% in the payment of electricity tariff by WAPDA for certain consumers. WAPDA while granting reduction, though used the word “concession” but factually it was part of the representation for inducing the prospective investors to establish their industries in certain area. No period was specified for said concession. Held, concession in circumstances, could not be for all times to come and it could be withdrawn by giving a reasonable notice. Word “concession”. Commotation.1997 CLC 641)

            Determination of tariff for supply of electricity by WAPDA. Surcharge and additional surcharge. Guidelines on the basis of which tariff is determined are enumerated. If the tariff rates are fixed with the parameters laid down in S. 25(2) of the Act, whether the same are recovered under the nomenclature of electricity charges or surcharge or additional surcharge, it does not matter and no exception can be taken to the same. If, however, S. 25(2) is violated, the consumers have every right to agitate the question of its legality and enforceability.(1997 CLC 641)

            Explanation.- Fixation of tariff for supply of electricity to consumers by WAPDA. Criteria/parameters. WAPDA has the power to determine tariff for electricity from time to time within the parameters laid down in S. 25(2) of the Act.(1997 SCMR 641)

            Determination of tariff for supply of electricity to consumers by WAPDA. Surcharge and additional surcharge. Constitutional jurisdiction, exercise of. Where, prima facie, there was no relief material before the High Court to conclude that determination of tariff by WAPDA was not in terms of S. 25(2) of the Act. High Court, in its Constitutional jurisdiction, was justified in not interfering with the tariff which includes surcharge and additional surcharge.(1997 SCMR 641)

            Supreme Court Rules, 1980, O.XXVI. Review. Consumers, who were entitled to 50% concession on the tariff would also be entitled to 50% concession on the surcharge and additional surcharge which will include the consumers who had been listed in the negative list up to the date when the negative list was put into operation.(1997 SCMR 1669)

            Word “ordinarily” used in S. 25(1) of the Act. Connotation. WAPDA is not totally prohibited under S. 25(1) of the Act from transmitting and distributing electricity directly to consumers. Provision of S. 25(1) has to be read with S. 8(2)(ii) of the Act which provides that WAPDA may provide, the generation, transmission and distribution of power, on the construction, maintenance and operation of power houses and grids.(1997 SCMR 641)

            Approval of Federal Government to revision of electricity tariff is not obtained by Wapda as requirement of S. 25(2) but for reasons that revision has adverse political, repercussions on Government in power and also for reason the Federal Government has administrative control over Wapda including financial discipline.(1997 AC 217)

            Approval to revision of electricity tariff by Wapda. Wapda making two proposals to Federal Government, which examining and resolving that Wapda should itself decide which of two options it wanted to adopt, meaning thereby that Federal Government did not find any of two proposals as unreasonable or unjustifiable. Held: This amounted to tacit approval of Government to Wapda proposals and increase of additional surcharge by Wapda by 14.5% instead of 21.3% of 21.7% in order to reduce burden on consumers was no violation of law nor any abdication of power by Federal Government.(1997 AC 217)

            Increase in tariff of electricity, fuel adjustment, charges, surcharge and additional surcharge. Validity. Questioned levies are not proved to be arbitrary or unreasonable. However, direction is issued to Federal Government of Pakistan to examine the issue, who is the competent supervisory Authority. If found feasible, Federal Government may also in its administrative discretion direction WAPDA to readjust and reduce, if and whenever, possible, rates of additional surcharge for various categories of consumers.(PLJ 1997 Lah. 306(DB)

            Tariff. Fixation of. By WAPDA. Sub-section (2) of section 25 lays down guidelines for WAPDA in fixing tariff. These guidelines are proceeded by words “the rates at which Authority shall sell power”. These words authorize WAPDA to sell power. Had intention been otherwise, language of section 25 of Act 1958 would have been different. Existing language of section 25 makes it crystal clear that WAPDA has requisite power to fix tariff. Agreeing with main judgment.(PLJ 1997 SC 739)

            Nature of surcharge and additional surcharge whether a tax or appendage to rate tariff. Admittedly surcharge or additional surcharge has been imposed with reference to Tariff for consumption of electricity, same is appendage a part, of tariff and nothing else merely because of a different nomenclature as shown in breakup of electricity bill. Held: Questioned levies are not a tax but are a part of tariff for sale of power by Authority, which can be imposed under provisions of section 25 of the WAPDA Act, 1958. Petition dismissed.(PLJ 1997 Lah. 306 (DB)

            Read with abridged conditions Nos. 26 and 27 of the agreement between authority consumers. Whether any prior show-cause notice necessary to consumers before increasing rate of tariff. Contract executed between Authority and consumers binds consumers to make payment at the rates which may be changed by Authority from time to time in future Held: not necessary to serve a prior notice upon petitioners or general public before imposition of questioned levies.(PLJ 1997 Lah. 306 (DB)

            Parameters and limitations for fixation of tariff. Fuel adjustment charges have been levied to meet increase in prices of furnace oil, gas and petrol, purchase and use whereof is necessary to generate thermal energy to support hydro-electric generation to meet consumers demand. Surcharge is levied to make payment of royalty to province of NWFP which is Constitutional obligation of Authority. Additional surcharge has been levied to earn return on investment at the rate of 18%. Loan granted to authority for construction of Hydel power generation station at Ghazi Brotha and one of the conditions attached with foreign loan is that Authority should contribute for 40% internal cash generation by way of self-financing. Authority also had investment plans worth Rs.34,548 millions presently in hand, to be executed in future, hence it needs funds. Held: That data mentioned above is not without substance. It cannot be said that questioned levies have been imposed not for reasons and purposes. Imposition of same falls within permitted scope of provisions of section 25 of the WAPDA Act. Petition dismissed.(PLJ 1997 Lah. 306 (DB)

            Question whether there has been any violation of S. 25(2) in revision of electricity tariff, including surcharge and additional surcharge, by Wapda is a question of fact and law. It is pre-eminently fit to be gone into in a suit before Civil Court and not in a Constitution Petition under Art. 199 of Constitution (1973).(1997 AC 217)

            Question as to whether Wapda has provided for six items referred to in S. 25(2) within limits warranted by law is a complexed and complicated question of fact. It cannot be decided without having proper analysis of costs of above six items from experts and without having a comparative statement of costs of said items obtaining in some developing countries similarly placed. (1997 AC 217)

            Electricity tariff rates fixed within parameters of S. 25(2), whether they are recovered under nomenclature of electricity charges of surcharge or additional surcharge, would be unexceptionable. If, however, they violate S. 25(2), consumers would have every right to agitate their legality and enforceability. (1997 AC 217)

            Wapda, and not the Federal Government, is empowered to electricity tariff and to revise the same. Conditions Nos. 26 and 27 of agreement are not inconsistent with S. 23, Contract Act, 1872. (1997 AC 217)

            Federal Legislative List. Part II, Entry Nos. 3 & 4 of Concurrent Legislative List. Entry No. 34, Vires of S. 25. West Pakistan Water and Power Development Authority Act, 1958 assailed on the touchstone of Art. 157, of the Constitution. Petitioners who were levied Electricity Tariff and Fuel Adjustment Surcharge, challenged the same on the ground that S. 25, West Pakistan Water and Power Development Authority Act, 1958 (under which Authority was empowered to levy such tax) was liable to be struck down as being inconsistent with Art. 157, of the Constitution. For resolution of such controversy, Court would have to examine in detail, for purpose of interpretation of Arts. 153, 154, 161 & 149 of the Constitution. In addition Entry Nos. 3 & 4 of Part II, Federal Legislative List and Entry No. 34 of Concurrent Legislative List, relating to subject of electricity, were to be examined alongwith Art. 157 of the Constitution. Breach of doctrine of promissory estopped was also contended and grievance was made that Fundamental Rights of petitioner as contemplated under Arts. 18, 23 & 24 had been violated. Leave to appeal was granted to examine the contention is raised.(1997 SCMR 1370)

            Explanation.—Determination of tariff for supply of electricity to consumers by WAPDA. Constitutional petition, exercise of. Scope. WAPDA can determine the rate of tariff by taking into consideration six items mentioned in S. 25(2) of the WAPDA Act, 1958. Guidelines on such aspect are also found in Explanation to Art 16(2) of the Constitution of Pakistan, 1973. Court, however, can examine the question as to whether there has been any violation of S. 25(2) of the Act while framing the tariff which includes surcharge and additional surcharge. Such question, being a mixed question of fact and law, is pre-eminently suited to be gone into in a suit and not in Constitutional petition.(1997 SCMR 641)

            Determination of tariff for supply of electricity to consumers by WAPDA. Promissory estoppel, principles. Application. If there is no illegality or irrationality or procedural impropriety in determining the tariff by WAPDA, percentage of increase in the surcharge or additional surcharge simpliciter will not attract the principle of promissory estoppel if the increase etc. fall within the ambit of S. 25(2) of the Act. (1997 SCMR 641)

            Determination of tariff for supply of electricity to consumers by WAPDA. WAPDA has the power to determine the tariff and to revise the same. Approval of Federal Government to revise the tariff of electricity is obtained by WAPDA not because the same is required under S. 25 of the Act or under any other provisions thereof but the same is obtained for the reason that the revision of tariff of electricity has adverse political repercussions on the Government in power and Federal Government has administrative control over WAPDA which includes financial discipline.(1997 CLC 641)

            Fixation of tariff for supply of electricity to consumers by WAPDA. WAPDA is expressly empowered under S. 25(2) of the Act to fix rates for the supply of electricity. (1997 CLC 641)

            Local Authorities Loans Act (IX of 1914), preamble. Tariff for supply of electricity by WAPDA to consumers. If WAPDA earns a reasonable return on its total investment in terms of S. 25(2) of the Act, it is for WAPDA to decide, how to apportion the same. If WAPDA provides certain percentage of the total yearly development outlay out of such reasonable return, that would nt be violative of either S. 25(2) of the Act or any other provision of the Local Authorities Loans Act, 1914. (1997 CLC 641)

            WAPDA can determine rates of tariff by taking into consideration six items mentioned in sub-section (2) of section 25 of Act. There is guideline on above aspect in Explanation to clause (2) of Article 161 of Constitution. However, Court can examine question, as to whether there has been any violation of sub-section (2) of section 25 of Act while framing tariff, which includes surcharge and additional surcharge. This question, being a mixed question of fact and law, is preliminary suited to be gone into in a suit and not in a Constitutional petition. Question, as to whether WAPDA has provided for six items referred to in sub-section (2) of section 25 of Act within limits warranted by law is a complex and complicated question of fact, which cannot be decided without having proper analysis of costs of the above items from experts and without having a comparative statement of costs of said items obtaining in some developing countries similarly placed.(PLJ 1997 SC 739)

26.        Maintenance of accounts.— The Authority shall maintain complete and accurate books of accounts in such form as may be prescribed by it:

            Provided that separate accounts shall be maintained for all schemes and transactions relating to power.

 

27.        Annual statement of accounts.— In the month of January each year the Authority shall submit to the Government for approval a statement of the estimated receipts and expenditure in respect of the next financial year.

 

28.        Audit.— The accounts of the Authority shall be audited every year by the Comptroller and Auditor-General of Pakistan in such manner as may be prescribed by the Government. Copies of the audit report shall be sent to the Authority, and, with the comments of the Authority, to the Government and shall also be available for public inspection. The Authority shall carry out any directive issued by the Government for rectification of an audit objection.

 

CHAPTER VII

REGULATIONS

 

29.        Regulations.— For the purpose of carrying into effect the provisions of this Act, the Authority may, with the approval of the Government, frame such Regulations as it may consider necessary or expedient.

30.        Repeal.— The West Pakistan Water and Power Development Authority Ordinance, 1958, is hereby repealed.

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