1989 PLP (C (PLC(CS))

CH. HASAN NAWAZ (MEMBER).

This appeal under section 4 of the Service Tribunals Act, 1973, purports to challenge the validity of the order of appellant's removal from service under section 17(1-A) of the WAPDA Act, 1958, passed by the respondent-Authority on 22-9-1983, when he was serving as Senior Storekeeper with Mechanised Construction of Pakistan Ltd. to whom his services were transferred on 1-9-1974 alongwith other members of the staff of Machinery Pool Organisation, WAPDA.

2. In 1986 S C M R 18 (WAPDA and another v. Muhammad Arshad Qureshi) it was ruled by the Supreme Court that the "matters required to be examined in scrutinising the exercise of power under subsection (1-A) are (a) the competency of the individual or body taking action under it (b) the amenability of the individual in respect of whom such a power has been exercised (c) the presence of taint of mala fide or bias in exercise of that power, the postulate of legislative authorisation to the exercise of public power being that it will exercised bona fide" and that "it is only after satisfying such tests or requirements that power can be said t0 have been exercised in a manner to achieve irrevocability or immunity from further scrutiny or substitution.

3. As we see from the grounds of appeal, there is no dispute regarding competency of the Authority, which passed the impugned order. Nor is there anything to show that amenability of the appellant for exercise of the powers under section 17(1-A) is in question. Therefore, what is required to he seen is the lack of good faith or the presence of taint of mala fides m the exercise of those powers.

4. Which, in turn, can be possible only if the validity of the order can be found to have been challenged on the ground of absence of good faith, it accordance with the requirements of Rule 6(2) of the Service Tribunals (Procedure) Rules. 1974, which provides that "if malice, fraudulent intention, knowledge or other condition of mind, including legal or factual mala fide, is alleged in an appeal, the memorandum of appeal shall state clearly the facts constituting such malice, fraudulent intention, knowledge or other condition of mind as the case may be, legal or factual mala fide, and be accompanied, besides the documents specified in clause (e) of sub-rule (1), by a summary of the documentary or oral evidence which the appellant proposes to produce in proof of the allegation and an affidavit in support of the contents of the summary."

5. Since the only ground available to the appellant for seeking judicial scrutiny of the impugned order was that of the presence of mala fides, it could justifiably be expected from him to make out a case with due precision and clarity m accordance with the rules. However, what we find is that there is no specific allegation regarding the presence of taint of mala fide in his otherwise lengthy pleadings; which cause an impression as if the appellant has taken a pains to confuse the whole issue, rather than positively making an allegation to that effect. The presence of mala fide being primarily a question of fact, there is no reason why the appellant should not have put forward with clarity allegation to that effect. That he failed to do so is rather impliedly indicative of the fact that the impugned order was passed in good faith and bona fide, exercise of the power conferred upon the Authority under section 17(1-A) of the Act. Most of the pleadings are so irrelevant that it becomes difficult to spell out as to what the appellant really wanted to plead m support of his case.

6. For the first time in paragraph 6 of the grounds of appeal, an out of context allegation was made to the effect that the "enmity with Mr. Muhammad Ramzan the then Deputy Manager, Warehouse was also brought to the notice of Manager of Warehouses and Workshop in his appeal made against adverse remarks in his annual confidential report by the said Muhammad Ramzan. This is obviously by no means a positive allegation of mala fide intention on the part of Muhammad Ramzan, Deputy Manager, Warehouse, much less in accordance with the requirements of the Rule 6(2) of the rules, which says that memorandum of appeal should clearly state the facts constituting malice in fact. An indirect reference has been made regarding the enmity of Muhammad Ramzan, Deputy Manager, Warehouse towards the appellant which is by no means sufficient to establish the fact of any such enmity, to say nothing of the fact that this Muhammad Ramzan does not appear to be responsible for the submission of report which resulted in the appellant's removal from service, even though he made certain adverse remarks against him.

7. Then, in paragraph-7 of the memorandum of appeal, it has been pleaded that "Mr. Asghar Butt and Amanullah Khan with the connivance of Muhammad Ramzan have started making false and baseless reports against the appellant to the Head office of M.C.P." The other place where allegation of mala fide has been made is paragraph 10(a) of the grounds where it is said that "the impugned removal order has been passed on the false, baseless and mala fide reports of the officers working in Wharehouse and Workshop M.C.P. Faisalabad" and that the provisions" of section 17(1-A) of WAPDA Act, have been pressed into the field just as a clock to shield the mala fide and arbitrary action taken against the appellant to satisfy the false prestige vendetta and malice of the above named officers of M.C.P." We do not feel any hesitation in saying that these pleadings, as already pointed out, do not constitute a positive charge of the presence of malice, as would justify a judicial examination of the matter in accordance with the Supreme Court's rule laid down in "Muhammad Arshad Qureshi's case.

8. Even if it be assumed that the pleadings do contain an allegation regarding the presence of taint of mala fides, it has not been made in accordance with the rule which requires a detailed and clear statement of facts constituting such factual mala fides.

9. There is another circumstance worth notice. It is alleged in paragraph 8 of the memorandum of appeal that "M.C.P. and WAPDA has made a general policy to make recommendations against WAPDA employees for taking action under section 17(1-A) of WAPDA Act if in the opinion of the M.C.P. management, they are undesirable for any reason." It was further alleged that recommendation for an action under section 17(1-A) of the Act against the appellant was made, for fulfilment of this general policy. We feel that these allegations are inconsistent with the case of presence of factual mala fide, if it can be made out of the appellant's pleadings. The existence of a policy to proceed against certain employees under certain circumstances cuts at root of the presence of mala fide intention. In actual fact such a policy is inherently inconsistent with the presence of malice. This rather shows that the appellant was not singled out for exercise of powers under section 17(1-A) of the Act and that the Authority proceeded against whosoever was found undesirable for some reason. The existence of such policy, if it be assumed to have been there, rather eliminates the element of arbitrary and malicious exercise of powers.

10. The only other ground which deserve our attention is that the procedure laid down in the Authoritys' office memorandum dated 17-4-1982 was not observed by it for passing the impugned order of appellant's removal from service.. This office memorandum (Annexure C) was circulated for the guidance of the officers who were concerned with the making of recommendations for action under section 17(1-A) of the Act. Details are unnecessary and it would be sufficient to say that the purpose to be served was to rule out the arbitrary exercise of powers meant only for the employees who had established reputation of being corrupt or who were reasonably considered to be corrupt or were persistently inefficient. There is absolutely nothing in the pleadings of the appellant to show that the procedure laid down in this office memorandum has E not been observed or that the appellant was not a corrupt officer. It may be mentioned that he did not produce any evidence in support of its case although by application dated 4-11-1984, he expressed an intention of examining of Bashir Ahmad, Senior Posting Clerk and Noor Ahmad, Senior Storekeeper of M.C.P. Warehouse in support of the case.

11. For these reasons, we hold that there is no force in this appeal. It is accordingly dismissed without any order as to costs. A.A./493/Sr. F Appeal dismissed.