1992 PLP 831 (PLC(CS))

9. I am further fortified in this view by the fact, that the aforementioned Regulations were framed by the respondent Corporation in 1985 viz. after the addition of subsections (2), (3) and (4) to section 10 in 1984. Regulation 85 which provides for appeal and review which has been reproduced above does not make any exception in the case of order of removal or retirement under Regulation No.88. An order of retirement or removal under Regulation 88 cannot but be considered as penalty and Regulation 85 gave the employee right of appeal of review from an order passed by competent authority imposing upon him any penalty. Use of word `an' before `order' and word `any' before `penalty' would have wide connotation and would also include an order of penalty passed under Regulation 88.

10. Therefore in view of the above circumstances the appellant had right to file appeal before competent forum upto 5-11-1989. The question that now requires consideration is whether after the omission of subsections (2), (3) and (4) by Amendment Act, 1989 in which forum the appellant could have filed the appeal after 2-11-1980 This question was considered by this Tribunal in an un reported case 'of Mohammad Saeed v. Pakistan International Airlines Corporation in Appeal No.KAR-236 of 1990, decided on 28-2-1991. This Tribunal observed:-- "What is procedural law has been discussed in Bindra's Interpretation of Statutes, 7th Edition, page

645. The learned Author has observed that word `procedure' which is a term used to express `the mode of proceeding by which a legal right is enforced as distinguished from the Law which gives or defines the right, and which by means of the proceedings, the Court is to administer; the machinery as distinguished from the product. In other word the expression `procedure' means the manner and form of enforcing the Law. According to Salmond, the Law of Procedure may be defined as that branch of the Law which governs the process of litigation:' It is also settled law that Procedural Law does not create any vested right. The bare reading of the aforesaid subsection (3) of the amending Ordinance, 1984. would show that it provides for the Forum and the procedure whereby an aggrieved employee of the Corporation could seek/redress of his grievances. Service Tribunals Act, 1973 is a Procedural Law as it provide for the Forum and the manner in which the remedy could be secured by the aggrieved civil servant. Similarly, The Industrial Relations Ordinance, 1969 and Standing Orders Ordinance, 1968 also contain some substantive provisions with regard rights of workman and also lay down the Forum and procedure for seeking redress of grievance by workman. In view of the above legal and factual position, the Labour Court would have jurisdiction to entertain the grievance application of the appellant after omission of subsections (2), (3) and (4) of section 10 of the Act on 2-11-1989."

11. This view also find support from the decision of their Lordships of the Supreme Court in the case of The Chairman, PIAC and others v. Nasim Malik PLD 1990 Supreme Court

951. In that case respondent filed appeal against the termination of his service on 10-5-1986 before the Service Tribunal. An objection was raised that the service of the employee was terminated on 15-7-1984 and was conveyed through letter, dated 6-8-1984 when at that time Service Tribunal had no jurisdiction in the matter and also because provision of section 10(2), 10(3) and 10(4) did not have any retrospective effect. Their Lordships, however, held that on the day the appeal was filed, the above provision had come into force and as such appeal could not be filed in any other Court except the Service Tribunal, in view of section 10(3) read with clause (2) of Article 212 of the Constitution of Pakistan. Thus the date for determining the jurisdiction of Appellate Court would be the date on which appeal was filed and not the date on which the termination order was passed. In the instant case the appeal could have been filed upto 5-2-1985 by which time the jurisdiction of Labour Court had been restored and therefore Labour Court had the jurisdiction to entertain the grievance petition after 2-11-1989.

12. The learned Labour Court has not given any finding on merits but has recorded evidence of both the parties. Under such circumstances this Tribunal may remand the case back to the learned Labour Court for decision on merits or may finally dispose of the appeal on merits on the basis of evidence recorded before the learned Labour Court.

13. The impugned order has been passed by the respondents under Regulation No.88 which may be reproduced as under:-- "

88. Retirement or removal under section 10 of the PIAC Act. 1956.--(1) When the competent authority not below the Managing Director is satisfied that reasonable grounds exist for retiring or removing from service any person employed by or serving under the Corporation, it may, at any time, retire or remove such person from service, without assigning any reason, after giving him an opportunity of being heard and not less than ninety (90) days notice or pay for the period by which such notice falls short of ninety (90) days. (2) The competent authority shall notify the employee of the time, date and place of the personal hearing, and after giving the employee an opportunity of being heard in person, pats an order of retirement or removal, as the case may be. (3) The decision of the competent authority shall be conveyed to the employee in writing without assigning any reason therefore." This Regulation 88 appears to have been promulgated in view of the amendment of PIAC Act where by subsection (2) was added to section 10 of PIAC Act, which reads as under:;- "(2) Notwithstanding anything contained in subsection (1) or any law, settlement or award for the time being in force, or any rules or regulations framed under this Act, or any rules, regulations, orders or instructions issued by the Corporation or in the terms and conditions of service of any person employed by, or serving under, the Corporation, the Corporation may at any time retire or remove from its service any person without assigning any reason, after giving him an opportunity of being heard and not less than ninety days' notice or pay for the period by which such notice falls short of ninety days; and subject to subsection (3), no such order of retirement or removal shall be called in question before any Court or Tribunal or other authority."

14. There is a parallel provision in the West Pakistan Water and Power Development Authority Act, 1958. It will be relevant to produce section 17(1)(A),of the said Act. "(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, 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." The orders passed by WAPDA Authority in exercise of powers under section 17(1)(A) have been subject-matter of the decision of Hon'ble Supreme Court in number of cases which can be taken as guideline for the purpose of considering the order of the respondents passed in exercise of its power under Regulation No.88 read with section 10(2) of the PIAC 1.ct.

15. In the case of Sheikh Abdul Hameed and others v. WAPDA PLD 1988 Supreme Court 35 their Lordships held that `action taken under section 17(1)(A) can be annulled only on the basis of mala fides and coram non judice. The mere fact that before taking action under section 17(1)(A) proceedings had also been initiated under WAPDA Employees (Efficiency and Discipline) Rules, 1978 would not be enough to set aside the order under section 17(1)(A) of the Act'.

16. In the case of Ehsan Elahi v. WAPDA 1988 SCMR 1247 it was held by their Lordships that "where law provided competent authority with two modes of terminating services of its employees, mere fact that it had, to begin with elected to act under one mode would not, in absence of any bar in law, preclude it from taking resort to second mode at a later stage." Where there was no evidence to show that order of termination of service was mala fide the appeal of the petitioner against the order of removal from service under section 17(1)(A) was dismissed.

17. In the case of Bashir Ahmed Tahir v. WAPDA 1990 SCMR 1465 their Lordships upheld the view of the learned Federal Service Tribunal that `for orders under section 17(1)(A), establishment of charge is not necessary. If in opinion of Authority for good reasons, continuance of a person in service was not desirable, order under section 17(1)(A) was well-justified."

18. When the respondent passed the impugned order of removal of service of appellant section 10(2) of PIAC Act was in force therefore the principles laid down by their Lordships in cases of removal of service of employees of WAPDA under section 17(1)(A) would be applicable to order passed by respondent. In the grievance petition there is only vague allegation in para. 4 that the action under section 10 of PIAC Act was not only misconceived but highly mala fide and incompetent. No evidence of mala fide has been led nor any instance of mala fide on the part of the respondent had been brought on the record either in the grievance petition or in the evidence. The main contention of the appellant is that he has been seriously prejudiced for not being dealt with under Regulation providing for issuance of show-cause notice, holding of enquiry providing opportunity for cross-examination. Similar objection of the employees had been dealt with by their Lordships of Supreme Court in the aforementioned citations in the cases pertaining to the WAPDA employees. This objection, therefore, cannot raise any presumption of mala fides against the respondents.

19. In the case of WAPDA v. Amjad Hidayat Butt 1986 SCMR 562 their Lordships have held that "mala fides has to be specifically pleaded and legal proof adduced to establish the same. No finding of mala fides car be recorded merely on basis of surmises, assumptions, assertions and bare allegation"..

20. In the case of Federation of Pakistan v. Saeed Ahmed Khan and others PLD 1974 Supreme Court 151 their Lordships have discussed at length the meaning of mala fides and the proof thereof. Their Lordships have observed:- "Mala fides" literally means `in bad faith'. Action taken in bad faith is usually action taken maliciously in fact, that is to say, in which the person taking the action does so out of personal motives either to hurt the person against whom the action is taken or to benefit oneself." "Mala fides is one of the most difficult things to prove and the onus is entirely upon the person alleging mala fides to establish it, because, there is, to start with, a presumption of regularity with regard to all official acts, and until that presumption is rebutted, the action cannot be challenged merely upon a vague allegation of mala fides. Mala fides must be pleaded with particularity, and once one kind of mala fides is alleged no one should be allowed to adduce proof of any other kind of mala fides nor should any enquiry be launched merely on the basis of vague and indefinite allegations, nor should the person alleging mala fides be allowed a roving enquiry into the files of the Government for the purpose of fishing out some kind of a case."

21. It may be pointed out that the reason that prompted the respondents to pass the order of removal of service of the appellant was the fact that the appellant was arrested by Custom Authorities on 12-2-1989 as accomplice in smuggling of gold and case was registered against the appellant and other employees of the Corporation. The appellant admitted in the cross -examination that such case is pending against him in the Customs Court. Under the circumstances the action of the respondents to remove from service such person, who is involved in smuggling case, in order to safeguard the reputation of the Corporation cannot be considered as mala fide and without good reason. It is not the case of the appellant that he was not given persona hearing or 90 days pay in lieu of notice. Even from the order of removal it is manifest that the above requirements of law were complied by the respondents.

22. In view of the fact the appellant does not have any case on merits so as to justify remand of the case back to the learned Labour Court, I dismiss the I appeal. M.Y.H./1888/Lb.S Appeal dismissed.