1990 PLP (C (PLC(CS))

(11) He disregarded the orders of his Superintending Engineer in making local purchases which caused financial loss to WAPDA."

3. Mr. Amjad Hadayat Butt, appellant in Appeal No. 259(L)/86. As Executive Engineer. Shahdara Division. "(1) He made purchases at higher rates resulting in a loss of Rs.5,67,364.85 to WAPDA. The purchases were neither made from the manufacturers or the stockists nor rates were ascertained from them. (2) He purchased sub‑standard material costing Rs.1,52,512 which is a loss to WAPDA. (3) He purchased obsolete material costing Rs.25,301 causing a loss to ??????????? WAPDA. (4) He purchased PVC S/C Copper cable from non‑manufacturers at higher rates resulting in a loss of Rs.18,894.05 to WAPDA. (5) He purchased Fire Extinguishers from firms not dealing in fire‑fighting equipment resulting in a loss of Rs.550 to WAPDA due to purchases at higher rates. (6) He split the purchase orders to make maximum purchases at his level. (7) He made unnecessary purchases for keeping in stock for which he had no power according to Section VI‑B(ii) of WAPDA Financial Powers. He thus misused his powers given to him under Section VI‑B(ii) of WAPDA Delegation of Financial Powers booklet. (8) He purchased T&P costing Rs.5,12,570.50 without administrative approval and technical sanction. (9) He purchased Office Furniture and Equipment costing Rs.4,76,913.34 without administrative approval and technical sanction and at higher rates from the non‑manufacturers which caused a loss of Rs.1,98,825 to WAPDA. (10) He disregarded the advice of Audit and was found indifferent to observing rules and regulations for making purchases though it was pointed out to him through two special audits." As Executive Engineer, McLeod Road Division. (1) He made purchases of Stores and T&P at higher rates resulting in a loss ??????????? of Rs.3,34,239. (2) He made irregular and unnecessary purchases of 46 Nos. Steel Stock Racks for Rs.1,49,000 from non‑manufacturers of furniture which resulted in a loss of Rs.1,14,975 to WAPDA. (3) He split the Purchase Orders in order to make maximum purchases at his level. (4) He issued 36 Purchase Orders beyond his competency of Rs.7,000 "At a time". (5) He made unnecessary and excessive purchases of stores not for their immediate consumption in work, but for keeping in stock for which he was not competent. (6) He purchased T&P for Rs.2,53,884 without administrative and technical sanction. (7) He purchased furniture for Rs.3,16,766 without administrative approval and technical sanction from non‑manufacturers of furniture resulting in loss of Rs.2,05,985 to WAPDA. (8) A sum of Rs.39,905 was paid on 3 vouchers without pre‑audit from Director Accounts." As Executive Engineer McLeod Road Division during 1979‑1980. "WAPDA sustained a loss of Rs.2,40,051.35 on the running of D.G. Sets during the year 1979‑80 as detailed below for which Mr. Amjad Hidayat _= ")Butt, XEN and Miran Buy, Foreman are responsible: Excess consumption of Diesel Oil????????????????????????????????????????????? Rs. 28,006.35 Idle running of D.G. Sets for battery charging.?????????????? Rs.1,92,045.00 Expenditure of mixing of Mobile Oil with Diesel oil.?????? Rs. 20,000.00 ??????????? Total:??? Rs.2,40,051.35 (1) He made purchases at higher rates resulting in a loss of Rs.2,29,657 to WAPDA. (2) 8 Nos. Pipe Wrenches 36" were not found accounted for either in the Stock Measurement Book or on the stock card which means these were not received or were misappropriated. This is a loss to WAPDA amounting to Rs.4,850.00 (3) He split the purchases to make maximum purchases at his level. (4) He made unnecessary purchases which necessitated transfer of stores costing Rs.3,83,660.20 to other Divisions and huge quantity costing Rs.1,78,497.93 is lying in `A' Type Store. (5) He purchased stores costing more than Rs.20,000 through limited inquiries and without getting the material inspected by the C.E. (M.I&S) in contravention of WAPDA Financial Power and WAPDA purchase procedure."

4. Kh Abdul Waheed, appellant in Appeal No. 23(L)/84. As Executive Engineer, Chunian Division: (1) He was found responsible for loss of Rs.1,75,961.50 on account of purchases made at higher rates. (2) WAPDA sustained a loss of Rs.2,135 due to purchase of Fire Extinguishers at higher rates. (3) He was responsible for a loss of Rs.1,11,600 on account of purchase of sub‑standard material. (4) WAPDA sustained a loss of Rs.9,975 on account of purchase of J‑Bolts 10" x 1/2" which are obsolete. (5) He issued 53 Purchase Orders in excess of Rs.7,000 which were beyond his competency. . (6) He split the purchase orders to make maximum purchases at his level. (7) He made unnecessary and excessive purchases for keeping in stock and not for immediate incorporation in works. He thus misused his powers. (8) He purchased Technical T & P worth Rs.1,80,421 without administrative approval and technical sanction. (9) He purchased furniture worth Rs.2,23,589 without administrative approval and technical sanction and at higher rates resulting in a loss of Rs.33,185 to WAPDA."

5. Mr. Shahid M . Akhtar, appellant in Appeal No.258(L)/86. As Executive Engineer Gulberg‑Construction Division. "(1) Purchases were made at higher rates resulting in excess expenditure of Rs.4,45,388.91. ?(2) Purchase of PVC S/Core Copper Cable from non‑manufacturers and without any justification for its use except some small quantity in Street Light work. An excess expenditure of Rs.64,901.77 was incurred on its purchase at higher rate. (3) He purchased furniture for Rs.1,04,290 from non‑manufacturers of furniture at higher rates resulting in excess expenditure of Rs.70,

378. He also purchased 3 Nos. Revolving Chairs for Rs.2,655 to which the Xen. was not entitled. ? (4) He purchased sub‑standard material costing Rs.34,712 which is a loss to WAPDA. ??????????? (5) He split the purchase orders to make maximum purchases at his level, without referring the cases to the higher authorities. (6) He made unnecessary purchases for keeping in stock and not for immediate incorporation in works as required under WAPDA Financial Powers. (7) He purchased centralised items without referring the case to the higher authority for making economical purchases for these items which are purchased in large quantity. (8) He purchased 8 Nos. Drill Chuks for Rs.6,705 which are not required for consumption." In support of its conclusions, the inquiry team has relied on documentary evidence which is available in three volumes of its report consisting of 305 pages besides a large number of annexures and appendices. I am thus convinced that j the action taken by respondent WAPDA in removing the appellant from service under Section 17(1‑Al of the WAPDA Act, 1958 rests on substantial material and is, therefore, bona fide.

38. The report of the inquiry team was examined by three officers of respondent WAPDA, namely, General Manager (Admn.), General Manager (Dev.) and General Manager, Finance (Power) and this Review Board recommended five appellants and 7 other officers for action under section 17(1‑A) on account of their having committed very serious irregularities and being the chief motivator. The learned counsel for respondents, during the hearing of the case, has pointed out the following serious irregularities alleged to have been committed by each of the appellants for justifying action against them under section 17(1‑A) of the WAPDA Act:

1. Mr. Zameer Hussain Bhatti appellant in Appeal No. 24(Ll/84. "He is distinguished from other officers because he disregarded the orders of the Superintending Engineer who ordered him not to make local purchases without his approval as heavy balances of store and T & P etc. were lying in M/Road Store. These orders were given in July, ' 1980, October, 1980 and September 1980. The rates paid by him were also objected to by the S.E. saying that they were on the higher side but he did not care for these orders and made purchases in the year 1980‑81 and in the year 1981‑

82. Thus he encouraged others to disregard the codel formalities by disregarding the codel rules as well as the specific orders of the superiors. Hence he was removed from service because he committed major irregularities of disobedience of orders of his superiors and of inflicting loss to WAPDA by making purchases at higher rates."

2. Mr. M. Makhdoom Taria appellant in Anneal No 260 (Ll /86. "He was also a pioneer for all these irregularities committed in Lahore Region. He did not obey his senior officers and continued making purchases in spite of instructions from his superior officers including the Chairman, AEB to stop making purchases, as discussed below: (a) On 14‑7‑1980, S.E. 2nd Circle issued a letter bearing No. 9830‑33/IP‑7 to all his XENs: including XEN. C/Lines Divn to obtain non‑availability certificate from A type Store M/Road before making purchases because sufficient stores were lying in A Type Store but he did not care for these orders and did no obtain non‑availability certificate from A type Store. (b)??????? Again the S.E. issued memo. No. 2473, dated 25‑2‑1981 to stop making purchases. But he did not stop. (c)??????? On 14‑3‑1981 he was again asked to stop making purchases and give explanation for making purchases in spite of orders, written and on phone. But he continued making purchases. (d)??????? He was again asked on 12‑8‑1981 to stop making purchases but he did not stop. (e)??????? Even after the expiry of the year 1981‑82 he ordered purchases for Rs.4,75,312.70 in July, 1982 when even the budget allocation was neither intimated nor received by the Chairman, AEB, Lahore."

3. Mr. Amiad Hidavat Butt a~nellant in Appeal_ No.259(L)/86. (a) Mr. Amjad Hidayat Butt was the Chief Motivator and a pioneer for all these irreglarities. He remained in M/Road Division from 1‑7‑1980 to 9‑1‑1981. He was XEN. of M./Road Divn. During the year 1979‑80 also. As he was famous for committing irregularities, the Authority ordered special audit of the purchases made by him in the year 1979‑80 which was carried out in August, 1980. During this special audit the irregularities of the nature committed by him in the year 1980‑81 were pointed out. It means this XEN. was fully aware of the irregularities which should not be committed during purchases but he did not care for the audit observations and made huge purchases for Rs.6,62,616.20 during the period from 1‑7‑1980 to 9‑1‑1981 in M/Road Divn. (b) He was transferred to Shahdara Divn. on 10‑1‑1981 where he remained up to 23‑6‑1982 and made huge purchases of Rs.18.17‑662.94 committing the same irregularities which he committed during the year 1979‑80, 1‑7‑1980 to 9‑1‑1981 in M/Road Divn. and now in Shahdara Divn. A special audit was again ordered for reviewing the purchases made by him from January 1981 to March 1981. During this special audit again the same serious irregularities of splitting purchases without public tenders, non‑inspection of material, purchases from non‑qualified firms etc, were pointed out by audit. But he overruled the audit and continued committing the same irregularities till he was removed from service.." 4.???????? Kh. Abdul Waheed. appellant in &Real No. 23(Ll/84. "Though the amount of his purchases is comparatively less but the purchases include office T&P which have been purchased for Rs.2,23,

589. These items include stock racks which have been purchased at very high rates and the material used in them was of very inferior quality with the result that all these racks were found broken when the "'inquiry committee got them inspected in 1982. He purchased seven No. Fire extinguishers also which were not found in use i.e. unfilled on inspection. He was found absconding when the inquiry was taking place: and his whereabouts were not available with the Chairman, AEB, Lahore. Thus he committed the irregularities of absconding from service and he did not answer the questionnaire issued by the Inquiry Committee."

5. Mr. Shahid M Akhtar appellant in Appeal No 258(L) /86. "The action under section 17(1‑A) of WAPDA Act, for removal from service against Mr. Shahid M. Akhtar was taken on the following serious nature of irregularities distinguishing him from the other officers against whom comparatively lenient view was taken: (a) Mr. Shahid M. Akhtar remained XEN. in St. Light Divn. from 23‑3‑1981 to 6‑12‑1981. During this short period of about nine months he purchased store for Rs.11,01.446.06 which is very excessive as compared with the others. (b) There was duplication in the maintenance work of the St. Light. The Operation Divisions were also maintaining St. Light as they were directly concerned with the consumers. On the other hand St. Light Division was also doing maintenance work. To avoid duplication in the work and to save expenditure the Chairman, AEB, Lahore issued letter No. 11001?88/EP, dated 30‑8‑1981 ordering the Operation Division to do maintenance work and the St. Light Division was asked not to carry out the maintenance work. But Mr. Shahid M. Akhtar purchased ''maintenance material costing Rs.4,22,147 even after the issue of these orders. He thus violated the specific instructions of the Chairman, AEB, Lahore. As the maintenance work was no more his responsibility material costing Rs.2,39,502.68 out of the total material of Rs.4,22,147 was transferred to other Divn. as it could not be utilised. It proves that he misused his power of emergency purchases with mala fide intention because the material was not used on the work by him. (c) He purchased heat resistance wire costing Rs.58,805.50. Its use has nowhere been prescribed by WAPDA in St. Light. This wire has got no standard specification because it has not been speed by WAPDA. He paid exorbitant rates for this item. When questioned he stated that he used heat resistance wire as an experiment to stop damage of costly material such as chowke MV Lamp etc. He was not competent to make any experiment without referring the same to the higher authorities and in many cases the designed Dte: of WAPDA has to be consulted in such matters:'

39. Thus in view of the above material the charge of unfair discrimination against the respondent falls to piece.

40. It was contended before us on behalf of the appellants that section 17(1‑A) of the WAPDA Act is repugnant to the injunctions of Islam. This plea is not sustainable in view of the judgment of the Federal Shariat Court in the case reported as P L D 1983 FSC

70. The last plea of the appellants that the action taken against them is violative of the Authority's instructions dated 17‑4?1982 is also without substance. As rightly observed by my learned brother, WAPDA does not stand denuded of its powers to act under section 17(1‑A) by laying down instructions and guidelines for subordinate functionaries for taking action under this section. For this reason, this plea of the appellants is also repelled.

41. For the above reasons, I dismiss all the five appeals with no order as to costs. SYED ALLY MADAD SHAH (CHAIRMAN): ‑All the five appellants M/s. Shahid M. Akhtar, Amjad Hidayat Butt, Muhammad Makhdoom Tariq, Khawaja Abdul Waheed. and Zamir Hussain Bhatti were engineers with the Water and Power Development Authority (hereinafter referred to as the WAPDA). They have been removed from service under separate orders passed on 12‑1‑1984, in exercise of powers conferred on the WAPDA under section 17(1‑A) of the WAPDA Act, 1958, to retire or remove from its service any of its employees without assigning any reason after giving him not less than thirty days' notice or pay in lieu thereof. They have challenged those orders in these appeals. Appeals of the first three appellants (Nos. 74(R)/84, 75(R)/84 and 76(R)/84) were allowed by a Bench of this Tribunal by judgment dated 9‑6‑1984. The WAPDA preferred Civil Appeals Nos. 805, 806 and 808 of 1988 before the Supreme Court. The Appeals Nos. 117(R)/84 and 118(R)/84 by the other two appellants (M/s. Khawaja Abdul Waheed and Zamir Hussain Bhatti) were allowed by another Bench of this Tribunal by judgment dated 15‑12‑1984, following the decision in the aforesaid three appeals. The WAPDA filed Civil Petitions Nos. 176‑R and 177‑R of 1985 in the Supreme Court for Leave to Appeal. The Supreme court, by its judgment dated 14‑12‑1985, allowed the three appeals and the two civil petitions for leave to Appeal and set aside the judgments of the Tribunal and remanded all the five appeals for their decision afresh in the light of the observations made in the judgment. All the five appeals have been heard afresh.

42. The facts, the appeals have arisen from, are recapitulated at paragraphs 14, 15, 16, 17 and 18 of the judgment initiated by Mr. Hasan Nawaz, Member. It may, however, be mentioned briefly that the appellants were serving as Executive Engineers, WAPDA at different stations in Lahore Region during the years 1981, 1982 and 1983. During the course of audit of their accounts, several irregularities in incurring expenditure amounting to misuse of official powers, etc were allegedly noticed. A High‑powered Inquiry Committee comprising the Chief Engineer (P.I.I.), the Director (Surveillance) and the Deputy Chief Auditor, Lahore Region, was constituted in October, 1982 to probe into the matter. The Committee submitted its report somewhere in September, 1983. The report revealed involvement of 75 officers of different ranks in huge purchases by the Executive Engineers in excess of their actual requirement purchases made from bogus firms at higher rates without inviting tenders etc. causing loss to the WAPDA to the tune of‑‑‑‑‑‑‑‑‑‑‑‑‑Rs. 90,62,862.59. The report was examined by a Review Board comprising the General Manager (Admn.), General Manager (Distribution) and General Manager Finance (Power). The Review Board agreed with the report of the Inquiry Committee and recommended departmental action against the officers involved in the alleged scandal. The Review Board placed those officers in five categories: (a)??????? Chairman, Area Electricity Board, Lahore (Sardar Nur Alam Khan): He was held responsible for having distributed funds to his Divisions indiscreetly and did not keep watch over the expenditure. It was recommended that he should be given Chairman's "Severe displeasure" (recordable) and should be shifted from that assignment. (b)??????? Twelve officers, named below, were recommended to be removed from service under section 17(1‑A) of the WAPDA Act, 1958 with immediate effect, without assigning any reason, by giving them thirty days' pay in lieu of notice as required by law: (1)??????? Mr. Muhammad Makhdoom Tariq Mufti, XEN. (2)??????? Mr. Shahid M. Akhtar, XEN. (3)??????? Khawaja Abdul Waheed, XEN. (4)??????? Mr. Zamir Hussain Bhatti, XEN. (5)??????? Mr. Amjad Hidayat Butt, XEN. (6)??????? Mr. Saeed Malik, B&AO. (7)??????? Mr. Muhammad Hanif, Divisional Accountant. (8)??????? Mr. Hamid Iqbal, Divisional Accountant. (9)??????? Mr. Arshad Imran Butt, Divisional Accountant. (10)????? Mr. Jamil Bhatti, Divisional Accountant. (11)????? Mr. Abdul Latif Qureshi, Divisional Accountant. (12)????? Mr. Salahuddin, Divisional Accountant. (c)??????? Action under (E&D) Rules was recommended to be taken against the ??????????? following 18 officers/officials: (1)??????? Ch. Muhammad Rashid Khan, S.E. (2)??????? Mr. Mushtaq Ahmad, S.E. (3)??????? S. Iftikhar Ali Shah, Director (Accounts). (4)??????? Mr. Mazhar Nawaz Khan Khakwani, XEN. (5)??????? Mr. Abdul Ghaffar Khan, XEN. (6)??????? Mr. Salahuddin, XEN. (7)??????? Mr. Muhammad Saleem, XEN. (8)??????? Mr. Talat Mahmood, XEN. (9)??????? Mr. Ansar Haider, XEN. (10)????? Mr. Asif Najib, B&AO. (11)????? Mr. Asghar Awan, B&AO. (12)????? Mian Muhammad, B&AO. (13)????? Mr. Nazir Ahmad Khan, B&AO. (14)????? Mr. Ismail Bhatti, B&AO. (15)????? Mr. Abdul Oadeer Khan, Divisional Accountant. (16)????? Sh. Hafiz Ahmad, Divisional Accountant. (17)????? Mr. Muhammad Akram, Divisional Accountant. (18)????? Mr. Muhammad Younus Butt, Divisional Accountant. (d)??????? Following senior officers were to be administered written warning: (1)??????? Mr. Anwar Herl, S.E. (2)??????? Mr. Abdul Sattar Akhtar, S.E. (3)??????? Mr. Asghar Ali Randhawa, S.E. (e)??????? Remaining employees named at paras. 4, 6 and 10 (Annexure A to the Inquiry report) held responsible for various lapses and acts of omission and commission, were to be administered written warning. The recommendations of the Board were considered at a meeting of the Authority held on 8‑1‑1984. The Authority took following decisions:‑‑ (a)??????? Recommendations of the Review Board as at para (b) were approved. (b)??????? As regards the recommendations of the Board at paras. (a) and (d) above, it was decided that instead of issuing "severe displeasure" (recordable) to Sardar Nur Alam Khan and written warnings to the three S.Es., those officers should be suitably admonished through a personal letter from the Chairman, WAPDA, as they were, in the opinion of the Member (Power) professionally competent and men of integrity. (c)??????? The employees mentioned at paragraph (e) above were to be kept under strict observation by the competent authorities to watch their future conduct. (d)??????? The cases of the 18 officers mentioned at para. (c) above, recommended for action under E&D Rules be further examined by the Review Board with a view to taking out those officers/officials whose acts of omission and commission were not of very serious nature. Pursuant to the aforesaid decision of the Authority, 12 officers mentioned at para. (b) of the recommendations of the Review Board were removed from service under section 17(1‑A) of the WAPDA Act, 1958, without assigning any reason. The five appellants herein were amongst them.

43. The decision of a Bench of this Tribunal in Appeals Nos. 74(R)/84, 75(R)/84 and 76(R)/84 vide judgment dated 9‑6‑1984 was summarised by the Supreme Court in its judgment dated 14‑12‑1985 as under:‑‑ "The Tribunal, in the said cases, based its decision mainly on the hypothesis that the cases of all the persons who were scrutinised by the Enquiry Committee stood on the same footing and that WAPDA was guilty of according different treatment to the different officers who were all involved in the alleged misconduct and that it had, thereby, been guilty of unfair discrimination. Hence, its order, in so far as the three respondents are concerned, was arbitrary and mala fide." The observations of the Supreme Court on the findings of the Tribunal are reproduced below:‑‑ "We regret that we cannot subscribe to this approach of the Tribunal. No basis was laid by it for asserting that the cases of all the officers, whose conduct was being inquired into by the Enquiry Committee, were identical. Unless the identity of interest and conduct of all the officers is established, the mere fact that a particular kind of action has been recommended against some of them and another type of action recommended against others, cannot make the action ordered as unjustified discrimination. So far as the order being mala fide is concerned, this Court has recently ruled in the case of Fauji Foundation and another v. Shamimur Rehman P L D 1983 S C 457 at page 567 that mala fides has to be specifically pleaded and legal proof adduced to establish it and no finding of mala fides can be recorded merely on the basis of surmises, assumptions, assertions and bare allegations. The essential requirements for establishing mala fides were singularly lacking and had clearly not been established by the respondents in Civil Appeals Nos.805, 806 and 808 of 1984." The Supreme Court, considering the submission of Mr. Abid Hassan Minto, Advocate for the respondents before the Supreme Court and appellants herein, that a large number of other issues had been raised in the appeals before the Tribunal, but the Tribunal had not adverted to them while holding that the action taken against the appellants before the Tribunal was vitiated on account of arbitrariness and mala fides and, therefore, they were entitled to get their orders of retirement set aside on the basis of those other pleas raised in appeal, not decided by the Tribunal made the following order:‑‑ "We have gone through the memorandum of appeals submitted by the respondents and agree that there were other pleas raised by them which needed consideration and have not been decided. In these circumstances, the orders of the Service Tribunal dated 9‑6‑1984 in Civil Appeals Nos.805, 806 and 808 of 1984 are set aside and these cases remanded back to the Service Tribunal, for decision of these appeals afresh in the light of the other pleas raised by them."

44. The Appeals Nos. 117(R)/84 and 118(R)/84 by M/s. Khawaja Abdul Waheed and Zamir Hussain Bhatti were allowed by another Bench of this Tribunal by judgment dated 15‑12‑1984 on the basis of the judgment in the appeals by the other appellants herein, with the following observations:‑‑ "Even if we do not agree with all the reasoning given by a Bench of this Tribunal in the judgment dated 9‑6‑1984, we are unable to make a discrimination, specially when the arguments given by the Bench in the other cases carry considerable weight. In these circumstances, we have no other choice but to dispose these two appeals also in the same manner in which the appeals of the other three engineers have been disposed of."

45. The Supreme Court made following observations in respect of those appeals which were before the Supreme Court in the form of Civil Petitions Nos.176‑R and 177‑R of 1985:‑‑ "Since the orders of the Service Tribunal, which have been challenged in Civil Petitions Nos.176‑R and 177‑R of 1985, are based on the decision of the Tribunal taken earlier on 9‑6‑1984, the said orders must also necessarily be set aside." We have heard Raja Muhammad Anwar, learned counsel for the respondents (in Civil Petitions Nos.176‑R and 177‑R of 1985) in detail in support of the case of the respondents at the leave stage, but he has not been able to persuade us that the decision in case of his clients is not based on the orders of the Service Tribunal dated 9‑6‑1984, even though the pleas of his clients may be somewhat different from those of the respondents in Civil Appeals Nos. 805, 8116 and 8118 of 1984." Consequently, we would convert these petitions into appeals and set aside the order of the Service Tribunal dated 15‑12‑1984 and remand these cases also to the Service Tribunal for decision afresh."

46. It would appear that the decision by a Bench of this Tribunal in Appeals Nos. 74(R)/84, 75(R)/84 and 76(R)/84, that the action by the WAPDA against the appellants therein was arbitrary and mala fide was not upheld and was rather set aside by the Supreme Court and the appeals were remanded for their decision on other grounds raised in the appeals. Similar was the position of the Appeals Nos. 117(R)/84 and 118(R)/84. However, the learned counsel for the appellants have agitated that the grounds of mala fides, arbitrariness and discrimination also have to be considered by the Tribunal on rehearing of the appeals. They have laid much stress on this proposition on the basis of the orders of the Supreme Court dated 30‑6‑1986 and 23‑11‑1986 on the appeals preferred by the appellants against the orders of this Tribunal on their applications that they may be permitted to agitate the grounds of mala fide and discrimination etc. at the rehearing of the appeals. The observations by the Supreme Court are that the Tribunal would not be debarred from taking note of the facts placed by the appellants showing that the action against them was actuated by mala fides.

47. At the rehearing of the appeals, the learned counsel for the appellants laid much stress on the ground of discrimination in awarding of the punishment on the appellants vis‑a‑vis their colleagues accused of almost the same allegations. They made reference to some of the findings of the Inquiry Committee and made pointation of the comparative involvement of each of the Executive Engineers held liable for excessive purchases and violation of the rules and regulations in making the purchases etc. The learned counsel for the appellants M/s. Shahid M. Akhtar, Amjad Hidayat Butt, and Muhammad Makhdoom Tariq attempted to show by means of a chart that the allegations against the appellants were of the same nature as were levelled against the other Executive Engineers who were not removed from service and were awarded lesser punishments. The analysis put forth by the learned counsel for the appellants has been highlighted in great detail by the learned Member Mr. Hasan Nawaz in the judgment proposed by him. The distinction in the two sets of the Executive Engineers treated differently in awarding of the punishment pointed out by the learned counsel for the respondents has been highlighted by the other learned Member Mr. Khawaja Abdul Jalil in the judgment proposed by him.

48. Action against the appellants was taken on the basis of a report of a hree‑Member Inquiry Committee, comprising Senior Officers, namely Mr. Mirza ussain Ali, Chief Engineer, (PII), IA.‑Col. (Retd.) Yousaf Ali Malik, Director Surveillance), Office of the Chief Engineer (MI&S), and Mr. Q.H. Chishti, eputy Chief Auditor, into the purchases of cent ralised and decentralized tore materials, tools and plants, spare parts and office furniture etc. made by the Held officers in 'Lahore Region during the financial years 1980‑81 and 1981‑

82. The Committee seems to have conducted thorough inquiry and it submitted most a comprehensive report. The Committee's report gives detailed particulars of the purchases in each Division/Unit made and the mode adopted therefore and he funds involved and the excesses and misuse of powers detected. The relevant features of the inquiry report are outlined in the judgment proposed by Mr. Hasan Nawaz, Member. The report of the Inquiry Committee was examined by the Review Board which comprised three General Managers, Administration, Distribution and Power. As many as 75 officers/officials were involved in the alleged scandal. The Review Board placed them in five categories taking into consideration their involvement in causing loss to the Authority to the extent of nearly one crore of rupees. The officers/officials found involved were Superintending Engineers, Executive Engineers, Divisional Accountants and Budget and Audit Officers etc. The main role in the purchases was played by the Executive Engineers who were ten in number. Five of them, who are the appellants herein, were removed from service in exercise of powers under section 17(1‑A) of the WAPDA Act, 1958, and the remaining five were proceeded against under the Efficiency and Discipline Rules. The main thrust of the arguments of the learned counsel for the appellants was against this situation, making grievance that the second set of the Executive Engineers were equally responsible for the alleged loss caused to the Authority and there was no obvious reason for making distinction in awarding different punishments on the two sets of the officers and it was a case of clear discrimination between the two sets of the officers of the same rank carrying the same responsibility.

49. Determination of the question whether there was discrimination in awarding punishment on the officers of the same class, all allegedly involved in squandering and embezzling huge funds, rests on various factors, viz. gravity of the alleged mischief, modus operandi employed, antecedents of the miscreants and repentance etc. In the detected by the Inquiry Committee stand magnified in the inquiry report as under:‑‑ (3) Muhammad Makhdoom Tariq (Appeal No. 76(R)/84). ?????????????????????????????????????????????? ???????????Rs. 9,76,663:07 (4) Khawaja Abdul Waheed (Appeal No. 117(R)/84).???????????? Rs. 2,99,671.50 (5) Zamir Hussain Bhatti (Appeal No. 118(R)/84). ?????????????????? Rs. 5,66,088.31 2nd Category:??????????????????????????????????????? (proceeded against under\ ????????????????????????????????????????????????????????????????????????? Efficiency and Discipline Rules): (1) Mazhar Nawaz Khakwani.????????????????????????? Rs. 9,02,754.58 (2) Salahuddin.???????????????????????????????????????????????? Rs.5,38,766.07 (3) Muhammad Saleem.??????????????????????????????????????????????? Rs. 4,92,121.15 (4) Talat Mahmood.???????????????????????????????????????????????????? Rs. 4,63,086.89 (5) Ansar Haider.???????????????????????????????????????????????????????? Rs. 3,52,459.20 (6) Abdul Ghaffar Mian.?????????????????????????????????????????????? Rs. 1,10,950.30 It would appear on comparative appraisal that the losses attributed to Shahid M. Akhtar, Amjad Hidayat Butt and Muhammad Makhdoom Tariq, appellants, and Mazhar Nawaz Khakwani, who was spared from action under section 17(1‑A), were at high altitude, while those attributed to Khawaja Abdul Waheed and Zamir Hussain Bhatti appellants, and Salahuddin, Muhammad Saleem, Talat Mahmood and Ansar Haider, who were proceeded against under the Efficiency and Discipline Rules, were at the mid level, and those attributed to Abdul Ghaffar Mian were at low level. According to me, the quantum of losses was a material factor for determining the gravity of mischief. It was on this account that the losses attributed to Mazhar Nawaz Khakwani were repeatedly pin pointed by the learned counsel for the appellants as a case of discrimination against the appellants in making selection for awarding punishment. It would be discussed hereinafter whether there was any justification for making distinction in awarding different punishment to the three appellants Shahid M. Akhtar, Amjad Hidayat Butt and Muhammad Makhdoom Tariq on one hand, and Mazhar Nawaz Khakwani, on the other hand. Likewise, the cases of Khawaja Abdul Waheed and Zamir Hussain Bhatti have to be compared with the cases of Salahuddin, Muhammad Saleem, Talat Mahmood and Ansar Haider as regards the losses attributed to them. Of course, the losses attributed to Abdul Ghaffar Mian of Rs.1,10,950.30 were at such a lower level that it could not be agitated as a ground of localising discrimination against the appellants. As regards the modus operandi employed in incurring the expenditure, the officers in both the categories are alleged to have made huge purchases in flagrant violation of rules and regulations in that respect and, therefore, liability of each one of them on that score stands on one platform. The Review Board adopted following criteria in categorising the officers for taking action:‑‑ (i)???????? Those who had committed very serious irregularities and had been chief motivators and had caused maximum loss to the Authority were recommended to be removed from service under section 17(1‑A) of the WAPDA Act, 1958. (ii)??????? Those who had caused lesser financial loss to the Authority but were equally guilty in committing the irregularities were recommended to be dealt with under the Efficiency and Discipline Rules. (iii)?????? Those who, according to the assessment of the Members of the Review Board, had not acted with mala fide intention and had caused lesser loss to the Authority were recommended to be served with written warnings. The criteria adopted by the Review Board appears to be quite rational as the action was proposed on the basis of the magnitude of the losses caused to the Authority and the motivation behind it. However, it has to be seen what yardstick was applied in classifying the appellants in category (i) and the other officers of the same rank, mentioned above, in category (ii). The entire thrust of the argument of the learned counsel for the appellants was directed against this aspect of the case. It appears from the analysis of the inquiry report that the losses attributed to the three appellants Shahid M. Akhtar, Amjad Hidayat Butt and Muhammad Makhdoom Tariq were at higher pitch and that was also the case in respect of Mazhar Nawaz Khakwani who was proposed to be proceeded against under the Efficiency and Discipline Rules. The losses attributed to Mazhar Nawaz Khakwani were nearly of the figures of losses caused by the appellants Shahid M. Akhtar, Amjad Hidayat Butt and Muhammad Makhdoom Tariq and much more than the losses attributed to the appellants Khawaja Abdul Waheed and Zamir Hussain Bhatti. The inquiry report furnishes the following distinguishing circumstances in respect of the appellants and Mazhar Nawaz Khakwani: SHAHID M. AKHTAR: He was Executive Engineer, Street Light Division, Lahore from 23‑3‑1981 to 6‑12‑1981 and he made total purchases of Rs.11,01,446.06. This has reference to the facts stated in the inquiry report (Vol. II) at pages 83 to

88. It further appears from report at pages 251 to 256 (Vol. II) that the appellant Shahid Akhtar remained Executive Engineer, Gulberg Construction Division, Lahore from 6‑12‑1981 to 30‑6‑1982 and he made total purchases of Rs.16,87,127.50. As per inquiry report, this appellant was not able to furnish explanation for the purchases made in violation of the rules and regulations. AMJAD HIDAYAT BUTT: (a) He was Executive Engineer, McLeod Road Division in 1979‑

80. He made total purchases of Rs.8,93,190.20; and caused loss of Rs.2,34,507 (Inquiry report Vol. II page 312). (b) He also caused loss of Rs.2,40,051.35 on maintenance of diesel generating sets in the year 1979‑80. (Inquiry report Vol. II, page 306). (c) He was Executive Engineer, Shahdara Division from 10‑1‑1981 to 30‑6‑1982. He made total purchases of Rs.18,17,662.94 and caused the loss of Rs.11,03,965.90. The observations of the Inquiry Committee on disregard of rules and regulations by him are as under (Inquiry report Vol. II, Page 56); "Mr. Butt before his transfer to Shahdara Division was YEN. McLeod Road Division where also he made excessive purchases in the years 1979?80 and 1980‑

81. Special audit of the purchases made by him in the year 1979‑80 was carried out in August, 1980 in which the irregularities now pointed out such as splitting purchases without sanction etc. were pointed out by Audit. While he was posted as XEN. Shahdara Division another special audit was carried out of the purchases made by him in the first three months of his posting i.e. from January, 1981 to March 1981. This audit again pointed out some irregularities i.e. purchases without public tenders, non‑inspection of material, purchases from non ?pre‑qualified firms etc. as were pointed out in the case of purchases made by him in McLeod Road Division. But he did not avoid committing these irregularities and repeated them in the purchases made by him from April 1981 onwards. Mr. Butt overruled the audit. He had no regard of rules and procedure and was bent upon making purchases at all costs. He was encouraged in his activities by his S.Es. i.e. S.E. IInd Circle and 1st Circle who regularised his purchases without even calling for his explanations and without regard to their own powers and without observing rules and regulations as discussed in the report of S.E. 1st and 2nd Circles." MUHAMMAD MAKHDOOM TARIO: He was Executive Engineer, Civil Lines Division from 1‑7‑1980 to 30‑6‑1982. He made total purchases of Rs.21,05,524.75. He too disregarded the orders of the S.E. as outlined in the inquiry report at page 169, reproduced below:‑‑ "It proves that XEN. By passed his S.E. and made the purchases without his approval through splitting. The Enquiry Committee has not admitted such notes submitted by the XEN. for his defence." KHAWAJA ABDUL WAHEED: He was Executive Engineer, Chunian Division from 1‑7‑1980 to 13‑5‑1981. He made total purchases of Rs.6,95,620 and caused loss of Rs.2,99,671.50 to the Authority. He did not appear before the Inquiry Committee and is alleged to have absconded. ZAMIR HUSSAIN BHATTI: He was Executive Engineer, Islampura Division. He made total purchases of Rs.12,54,706.68 and caused loss of Rs.5,66,088.31. The inquiry report Vol. II reveals at page 189 that he disregarded the orders of the S.E. on three occasions in the following manner:‑‑ "(a)?????? The S.E., 2nd Circle had given orders to all XENs. of his Circle with his Memo. No. 9830‑33/IP‑7, dated 14‑7‑1980 (Annexurt H) that in future they should obtain non‑availability certificate from the Regional Store Shalamar and `A' Type Stores under the Administrative control of the Circle. But Mr. Bhatti did not obtain any non‑availability certificate from the `A' type Stores of 2nd Circle such as `A' type Store McLeod Road where heavy balances of Stores and T&P like welding plants, nuts and bolts, etc., were lying. He thus flouted the orders of (he S.E. resulting in unnecessary purchases of, stores which were already Wailable in `A' type Stores. (b)??????? The S.E., 2nd Circle had objected to the rates mentioned in 30 P.Os issued by the XEN. in his Memo. No. 13346/IP‑7 dated 15‑10‑1980 (Annexure `I') and advised him to give a certificate to the effect that the XEN. has personally ascertained the genuineness of the rates from three recognised manufacturers/dealers and found the issue rate of P.O. as genuine and reasonable and it would be his personal responsibility. This action was to be taken in respect of all materials the dates of which were available in price Bulletin or not. Mr. Bhatti did not carry out this exercise resulting in payment of higher rates and loss to WAPDA. (c) The S.E. 2nd Circle further observed on receipt of 25 P.O& from the XEN. with his Memo. No even dated 6‑9‑1980 (Annexure `K) that the rates given in the P.Os. were on the higher side and advised that the rates should not be more than Price Bulletin rates. He also directed him to intimate that the estimates for purchase of T&P and line hardware were prepared and sanctioned by the competent authority or not. But no action was taken on that. Had he taken action on the directions of the S.E. all the above irregularities could have been avoided. The S.E. had informed well in time in early months of 1980‑

81. Bllt the irregularities continued not only in 1980‑81 but also in 1981‑82". MAZHAR NAWAZ KHAKWANI: He was Executive Engineer, Rang Mahal Division from 17‑7‑1980 to 6‑12‑1981. He made total purchases of Rs.8,15,164.50. The general allegations against him and the other Executive Engineers were that he had made purchases of stores either on higher rates or from non‑approved firms and made purchases beyond his financial powers and made splitting of orders in some purchases etc. The Inquiry Committee did not hold him liable of disregard of any orders of his superiors etc.

50. As regards the other Executive Engineers, namely Salahuddin, Muhammad Saleem, Talat Mahmood, Ansar Haider and Abdul Ghaffar Mian, they were, of course, found guilty of violations of rules and regulations in making purchases of stores, but there is no mention that they had disregarded the orders of their superior officers. 50‑A. Evidently, only those Executive Engineers (the appellants) who had flagrantly disregarded the orders of their officers, and Khawaja Abdul Waheed, who had absconded during the course of the inquiry proceedings, were removed from service under section 17(1‑A) of the WAPDA Act, 1958; while the other Executive Engineers were recommended to be proceeded against under the Efficiency and Discipline Rules. Of course, they too could have been removed from service under section 17(1‑A) like the appellants, but the WAPDA seems to have exercised much restraint in punishing the miscreants and took action under section 17(1‑A) of the WAPDA Act against only those who were guilty of gross disregard of the rules and regulations in making purchases and ignoring orders of their superiors; and segregated the other employees according to the nature of their overall involvement in causing losses to the Authority. The distinction so made by the Authority was not unjustified and there was no discrimination in segregating the appellants for their removal from service under Section 17(1‑A) of the WAPDA Act, 1958.

51. The appellants have also alleged mala fides, a ground often advanced. The Supreme Court has held in several cases that the ground of mala fides cannot succeed merely on the basis of surmises, assertions and bare allegations but it has to be specifically pleaded and legal proof adduced to establish it. The enlightening authorities on this proposition are the cases of Government of West Pakistan v. Agha Abdul Karim Shorash Kashmiri P L D 1969 SC 14; Federation of Pakistan v. Saeed Ahmad Khan P L D 1974 S C 151; and Fouji Foundation and another v. Shamimur Rehman P L D 1983 S C

457. In the instant cases, it was observed by the Supreme Court in the judgment dated 14‑12‑1985 in Appeals Nos. 74(R)/84; 75(R)/84 and 76(R)/84, that the essential requirements for establishing mala fides were singularly lacking and had not been clearly established in the Civil Appeals Nos. 805, 806 and 808‑R of 1985, filed before the Supreme Court by the appellants Shahid M. Akhtar, Amjad Hidayat Butt and Muhammad Makhdoom Tariq. These observations extended also to the Civil Petitions for Leave to Appeals Nos. 176‑R and 177‑R of 1985 filed by the appellants Khawaja Abdul Waheed and Zamir Hussain Bhatti. The appeals were remanded by the Supreme Court for their decision on the grounds other than that of the mala fides. Nevertheless, the counsel for the appellants urged that they may be permitted to advance grounds to substantiate the allegations of mala fides. As mentioned above, their applications to that effect were dismissed by the Tribunal and their appeals before the Supreme Court against those orders too were dismissed, of course, with the observations that the Tribunal would not be debarred from taking note of the facts placed by the appellants showing that the action against them was actuated by mala fides. There is hardly any substantial ground to prove mala fides. The, main ground repeated at the hearing was that of discrimination in categorisation of the officers for awarding punishment and that aspect of the case has been dealt with above and conclusion arrived at that there was no discrimination. The term `mala fides' stands magnified in' the case of Federation of Pakistan v. Saeed Ahmad Khan P L D 1974 S C 151 referred to above, as under:‑‑ "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. Action taken in colourable exercise of powers, that is to say, for collateral purposes not authorised by the law under which the action is taken or action taken in fraud of the law are also mala fides. It is necessary, therefore, for a person alleging that an action has been taken mala fide to show that the person responsible for taking the action has been motivated by any one of the considerations mentioned above." In the instant cases, the action against the appellants was ken on probe into the complaints that there had been gross abuse of exercise of financial powers by the WAPDA officers in Lahore Region. Firstly, there was audit of the accounts throughout the Region. Thereafter, a Committee consisting of three senior officers was constituted to probe into the misuse of powers and squandering of the funds. The Committee made thorough inquiry and detected several irregularities and misuse of powers throughout the Region and found 75, out of 87 officers, involved in the scandal. The report of the Inquiry Committee was reviewed by a Board of three very senior officers of the Authority. The action was taken after such thorough probe into the matter. The allegations of mala fides behind an action taken after such thorough probe appears to be a malicious Attempt on the part of the appellants to escape action taken against them.

52. The appellants have also contended that the action against them under section 17(1‑A) of the WAPDA Act was in violation of the rules/instructions issued by the WAPDA to its officers that wherever there was material for taking proceedings under the Efficiency and Discipline Ruls, action under section 17(1‑A) of the WAPDA Act need not be resorted to, and the action taken against them was in violation of those instructions and it tantamounted to mala fide exercise of powers. Of course, the Authority had issued such instructions, which fact indicates that the officers were impressed upon to exercise care and caution in taking severe action against the subordinates. In the instant cases, abundant care and caution were adopted inasmuch as thorough inquiry was held and the concerned officers were given opportunity to explain the irregularities and the inquiry report was reviewed by three members of the Authority and action under section 17(1‑A) of the WAPDA Act was taken thereafter and that too against only those officers who wt: z guilty of gross‑misconduct, as discussed above, and the rest were proceeded against under the Efficiency and Discipline Rules etc. A grievance was also made at the hearing that some of the officers of the class of the appellants, who were recommended for action under Efficiency and Discipline Rules, were awarded lenient punishment and some of them were even rewarded with promotions. But that was a subsequent development and each case raust have been dealt with on its own merits and demerits, and even if any leniency was extended in any case, the appellants met misfortune having emanated from their own misdeeds.

53. The learned counsel for the appellants also urged at the hearing that the action against the appellants under Section 17(1‑A) of the WAPDA Act, without show‑cause notice, was against the injunctions of Islam and they placed reliance on the‑decision of the Shariat Appellate Bench of the Supreme Court in the case of Pakistan and others v. Public‑at Large and others, reported in P L D 1987 S C

304. The decision by the Shariat Appellate Bench was on the provisions of section 13(u) of the Civil Servants Act, 1973, which provided that a civil servant could be retired after having completed qualifying service of twenty‑five years. In the instant cases, the appellants did have notice of the proceedings that were taken against them. They were associated in the inquiry and they were not taken by surprise. In my opinion, that ground is not available to them.

54. The learned counsel for the appellants Shahid M. Akhtar, Amjad Hidayat Butt and Muhammad Makhdoom Tariq took pains to present the case that the appellants had not violated any rules and regulations in making the purchases of the stores and he made reference to some regulations and instructions as well as to the Price Bulletins etc. The exercise made by him could at the most find justification for purchases of few items here and there and not in respect of all the items involving lacs of rupees. Herein, the question to be determined is whether there was sufficient evidence before the Authority for taking action against the appellants in exercise of powers under section 17(1‑A) of the WAPDA Act, 1958. The inquiry report does furnish sufficient evidence that there was actionable bungling in the purchases of the stores by the appellants and others and, therefore, the exercise of examination of each item of irregular purchases detected by the Inquiry Committee would not be called for.

55. The appellants have also agitated that they were condemned unheard. It has been discussed above that the appellants were associated in the inquiry and they were given opportunity by the Inquiry Committee to explain the purchases which were found to have been made in violation of the rules and regulations. For P the purpose of an action under Section 17(1‑A) of the WAPDA Ad, the appellants were given enough opportunity of giving explanation to what was detected to have been done in fraudulent manner. This ground is not sustainable.

50. In the result, the appeals have no merit and they are dismissed with no order as to costs. By virtue of proviso (a) to subsection (2) of section 3‑A of the Service Tribunals Ad, 1973, the decision of the Tribunal, in terms of majority opinion, recorded by the Chairman and Mr. Khawaja Abdul jalil, Member, is that all the appeals stand dismissed with no order as to costs. AA./496/Sr. F????????????????????????????????????????????????????????????? Appeal s dismissed.