2021 PLP (C (PLC(CS))

TARIQ SALEEM SHEIKH, J.

Brief facts giving rise to this petition are that the Petitioner is a Band Master (untrained) in BS-7. On 4.5.2020 Respondent No.4 issued him a notice under the Punjab Employees Efficiency, Discipline and Accountability Act, 2006, to show cause as to why he may not be penalized under Section 4 of the said Act for his misbehavior and misconduct with the District Education Officer (SE), Dera Ghazi Khan (Respondent No.3), regarding which he had lodged a complaint vide Letter No.1296/Admn. dated 2.5.2020. Through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the Petitioner has assailed the vires of show-cause notice dated 4.5.2020.

2. The learned counsel for the Petitioner contends that the impugned show-cause notice is mala fide. The Petitioner has not committed any misconduct for which he may be punished. He prays that the said notice be quashed.

3. The learned Assistant Advocate General has vehemently opposed this petition. He contends that mere issuance of show-cause notice does not infringe any right of a person so it cannot be challenged before this Court. According to him, this petition is misconceived and liable to be dismissed.

4. Arguments heard. Record perused.

5. A show-cause notice is merely a statement by a department/organization against its employee to the effect that some of his act or acts constitute misconduct which call for disciplinary proceedings. It is the first step in compliance with requirements of "due process". Its purpose is to put the concerned person on notice about the allegations against him and provide an adequate opportunity to explain his position. If satisfied with the explanation, the authorized officer is under a statutory duty to terminate the proceedings. Interference by the High Court at the stage of show-cause notice stultifies and retards the adjudicatory process provided by law. Therefore, in Mst. Shagufta Begum v. Income Tax Officer Circle XI, Zone-B, Lahore (PLD 1989 SC 360), the Hon'ble Supreme Court held that the employee should raise objection, if any, to the show-cause notice before the competent authority or the departmental forum in the first instance and thereafter pursue his remedies of appeal/revision before the higher departmental forum. Relevant excerpt from the judgment is reproduced hereunder: "Accordingly we consider it fit case in which the petitioner would be well advised if he raises the pleas sought to be advanced before this Court, in the departmental forum in the first instance and also pursue the normal channels of appeal/revision/reference to the higher departmental forum. The apprehension expressed by the learned counsel that the departmental authorities are likely to support the issuance of notice after this contest before the superior court, is unfounded at least at this stage. The learned Income Tax Officer having thought, prima facie, that he had the jurisdiction, issued the impugned notice. There would be nothing wrong in his hearing the party concerned on the relevant objections including that of his jurisdiction. He would not make it a question of personal prestige if he finds that the notice was issued without jurisdiction. On the other hand, if he feels satisfied that he had the jurisdiction, same would apply to his such a determination accordingly." The above view was reiterated in Khalid Mahmood Ch. and others v. Government of the Punjab through Secretary, Livestock and Dairy Development (2002 SCMR 805).1

6. A show-cause notice is not an adverse order. Therefore, it is not subject to judicial review. Syed Mansoor Ali Shah, J. eloquently explained this point in Mughal-e-Azam Banquet Complex through Managing Partner v. Federation of Pakistan through Secretary and 4 others (2011 PTD 2260) as follows: "The other aspect of the matter is that mere issuance of Show-Cause Notice does not mean that the case will invariably be decided against the petitioner and there is always a possibility that the same may be decided in favour of the petitioner. Laying challenge to a show-cause notice is, therefore, no different than filing a petition on the basis of an apprehension or a speculation. Such a petition is premature and not ripe for adjudication. 'Just as a case can be brought too late it can be brought too early, and not yet be ripe for adjudication until the controversy has become concrete and focused, it is difficult for the court to evaluate the practical merits of the position of each party.' The basic rationale behind the 'ripeness' doctrine is 'to prevent the courts through avoidance of premature adjudication, from entangling themselves, in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties.' 'Ripeness' requires that an issue be sufficiently formed and felt to be a justifiable controversy As courts insist on a concrete context, that context enables them to better see the problems that they are supposed to redress. As courts insist on complete agency action, that insistence may (1) eliminate the waste of courts deciding disputes that might be mooted as an agency runs its course, (2) assure the courts of the knowledge gained from applied agency expertise, and (3) provide them with a record already developed by the agency."

7. In Messrs Siemens Aktiengesellschaft (Siemens AG) through Authorized Person v. Pakistan through Secretary Revenue Division and 3 others (2016 PTD 1158) the Commissioner Inland Revenue proposed to initiate proceedings against the company under Section 122(5) of the Income Tax Ordinance, 2001, for amendment of the assessment order and for this purpose issued (show-cause) notice to it under Section 122(9) of the said Ordinance. The company assailed the notice before the Islamabad High Court through a constitutional petition. The Court held that it was not maintainable and after a thorough analysis of judicial precedents summarized the law relating to show-cause notices as under: "(i) Show-cause notice is not an adverse order unless it could be clearly shown to the satisfaction of the Court that it has been issued by an authority not vested with jurisdiction or it was issued for mala fide reasons. (ii) The exception relating to want of jurisdiction does not include every jurisdictional error. A wrong exercise of jurisdiction or interpretation of the law cannot be treated as want of jurisdiction. (iii) Constitutional jurisdiction is exercised if the Court is satisfied that the person is an 'aggrieved party' within the context of Article 199 of the Constitution and no adequate remedy is provided by law. If adequate statutory remedies are provided under the relevant statute, it is to be taken into consideration while exercising discretion under Article 199 of the Constitution. (iv) Bypassing or circumventing statutory forums is to be discouraged. (v) The approach should be to advance the object and purpose of a statute and every effort made to uphold the sanctity of the legislative intent rather than defeating it."

8. The same law prevails in India. In State of Uttar Pradesh v. Brahma Datt Sharma and another [(1987) 2 SCC 179], the state government issued notice to the petitioner calling upon him to show cause as to why his pension and gratuity be not forfeited under Article 470(b) of the Civil Service Regulations on the ground of financial irregularities and misconduct. The High Court quashed the show-cause notice in writ jurisdiction. The Supreme Court of India set aside that order holding as under: "The High Court was not justified in quashing the show cause notice. When a show-cause notice is issued to a government servant under a statutory provision calling upon him to show cause, ordinarily the government servant must place his case before the authority concerned by showing cause and the courts should be reluctant to interfere with the notice at that stage unless the notice is shown to have been issued palpably without any authority of law. The purpose of issuing show-cause notice is to afford opportunity of hearing to the government servant and once cause is shown it is open to the government to consider the matter in the light of the facts and submissions placed by the government servant and only thereafter a final decision in the matter could be taken. Interference by the court before that stage would be premature."

9. In Union of India and another v. Vicco Laboratories [(2007) 13 SCC 270] show-cause notice against proposed classification of goods under the Central Excise Tariff Act was challenged. The Supreme Court held: "Normally, the writ court should not interfere at the stage of issuance of show-cause notice by the authorities. Abstinence from interference at the stage of issuance of show-cause notice in order to relegate the parties to the proceedings before the authorities concerned is the normal rule. However, the said rule is not without exceptions. Where a show-cause notice is issued either without jurisdiction or in an abuse of process of law, certainly in that case, the writ court would not hesitate to interfere even at the stage of issuance of show-cause notice. The interference at the show-cause notice stage should be rare and not in a routine manner." Further reference may be made to Special Director and another v. Mohd. Ghulam Ghouse and another (AIR 2004 SC 1467) and Union of India and another v. Kunisetty Satyanarayana (AIR 2007 SC 906).

10. The only exception in which the High Court may entertain a constitutional petition against a show-cause notice is where it is mala fide, without jurisdiction or coram non judice. In the instant case, the Petitioner has only alleged that the impugned notice is mala fide. He has not pleaded the other grounds. Let us now have a look at this aspect. 11. "Mala fide" literally means "in bad faith". All authorities, judicial, quasi-judicial and administrative, must exercise the powers conferred on them lawfully, reasonably and in good faith. If the power is exercised unlawfully, improperly, unreasonably or in bad faith, out of personal animosity, ill-will, with vengeance, oblique motive or with a view to achieve an object foreign to the statute, the exercise is bad and the action illegal. De Smith states: 2 "A power is exercised fraudulently if its repository intends to achieve an object other than that which he claims to be seeking. The intention may be to promote another public interest or private interest. A power is exercised maliciously if its repository is motivated by personal animosity towards those who are directly affected by its exercise."

12. In Zafar-ul-Ahsan v. The Republic of Pakistan, (through Cabinet Secretary, Government of Pakistan) (PLD 1960 SC 113) Munir, C.J. observed: "Of course where the proceedings are taken mala fide and the statute is used merely as a cloak to cover an act which in fact is not taken though it purports to have been taken under the statute, the order will not, in accordance with a long line of decisions in England and in this sub-continent, be treated as an order under the statute."

13. Again, in Abdul Rauf and others v. Abdul Hamid Khan and others (PLD 1965 SC 671) Kaikaus, J. observed that "a mala fide act is by its nature an act without jurisdiction. No legislature while granting power to take action or pass an order contemplates a mala fide exercise of power. A mala fide order is a fraud on the statute. It may be explained that a mala fide order means one which is passed not for the purpose contemplated by the enactment which granted the power to pass an order, but for some other collateral or ulterior purposes". This view was reiterated in Government of West Pakistan and another v. Begum Agha Abdul Karim Shorish Kashmiri (PLD 1969 SC 14) and The State v. Zia-ur-Rahman and others (PLD 1973 SC 49). In the last case Hamoodur Rehman, C.J. added that "a mala fide act stands in the same position as an act done without jurisdiction because no Legislature when granting a power to do an act can possibly contemplate perpetration of injustice by permitting the doing of that act mala fide." The case Said Zaman Khan and others v. Federation of Pakistan through Secretary Ministry of Defence and others (2017 SCMR 1249) reaffirmed this statement of law.

14. An order is mala fide if there is (a) express mala fide or "malice in fact"; or (b) implied or legal malice or "malice in law". The former is actuated by extraneous considerations whereas the latter arises where a public authority deliberately acts contrary to the objects, requirements and conditions of a valid exercise of power even though that may be without any ulterior motive. In Shields v. Shearer and another [(1914) AC 808], Viscount Haldane LC stated: "Between 'malice in fact' and 'malice in law' there is a broad distinction which is not peculiar to any particular system of jurisprudence. A person who inflicts an injury upon another person in contravention of the law is not allowed to say that he did so with an innocent mind; he is taken to know the law, and he can only act within the law. He may, therefore, be guilty of malice in law, although so far as the state of his mind is concerned, he acts ignorantly, and in that sense innocently." Shearer has been quoted with approval by the Hon'ble Supreme Court of Pakistan in Said Zaman Khan and others v. Federation of Pakistan through Secretary Ministry of Defence and others (2017 SCMR 1249) and by the Indian Supreme Court in State of Uttar Pradesh v. V. K. S. Chaudhary and others (AIR 1976 SC 1207), Smt. S.R. Venkataraman v. Union of India and another (AIR 1979 SC 49) and Punjab State Electricity Board Ltd. v. Zora Singh and others [(2005) 6 SCC 776 = AIR 2006 SC 182]. This Court also cited it in Mian Manzoor Ahmad Wattoo v. Federation of Pakistan and 3 others (PLD 1997 Lah. 38).

15. The difference between the two species of malice has been noted with great clarity by this Court in Ghulam Mustafa Khar v. Federation of Pakistan (PLD 1988 Lahore 49) in the following words: "Malice in law is different from the malice as known in the common parlance which is usually associated with evil motive influencing the mind of the person committing the malicious act. An order in violation of law is mala fide in law, though actual malice may not be present in the mind of the Authority passing the order." Reference may also be made to the case of Federation of Pakistan v. Ghulam Mustafa Khar (PLD 1989 SC 26) wherein the apex Court observed: "While strong and cogent evidence is necessary to prove mala fides on facts, for malice in law it is sufficient if it is shown that the impugned action is not countenanced by the law under which the authority had acted."

16. At times the courts use the idiom "colourable exercise of power" to denounce an act of an administrative authority. Colourable exercise means that under the "colour" or "guise" of power conferred for one purpose, the authority is seeking to achieve something else which it is not authorized to do under the law in question.3 It is also known as fraudulent exercise of power. According to C.K. Thakker, a power can be said to have been exercised colourably if its repository intends to achieve an object not warranted by law. When an action is taken on irrelevant or extraneous considerations or is otherwise unreasonable, it would be bad and can be set aside by a competent court. In such cases, the power is exercised for an "alien" purpose, i.e. other than the one for which it is conferred by a statute and ought to have been exercised.4

17. Legally speaking, there are several forms of discretion. The authority might have acted mala fide or unreasonably, or on irrelevant considerations or for collateral purpose or it might have passed an order or taken an action in colourable exercise of power. Many a time these forms overlap which makes it difficult to draw lines among them. According to Thakker,5 the "only thing which can be said is that mala fide of power is a stronger form of abuse of power than colourable exercise of power by the authority." In The Federation of Pakistan through the Secretary, Establishment Division, Government of Pakistan Rawalpindi v. Saeed Ahmad Khan and others (PLD 1974 SC 151) the Hon'ble Supreme Court of Pakistan held that "action taken in colourable exercise of powers, that is to say, for collateral purposes not authorized by the law under which the action is taken or action taken in fraud of the law are also mala fide." This view was reaffirmed in Qazi Hussain Ahmad, Ameer Jamaat-e-Islami Pakistan and others v. General Pervez Musharraf, Chief Executive and others (PLD 2002 SC 853) and Khawaja Ahmad Hassaan v. Government of Punjab and others (PLD 2004 SC 694).

18. In the leading case of The State v. Zia-ur-Rehman and others (PLD 1973 SC 49) the Hon'ble Supreme Court of Pakistan ruled that courts are competent to scrutinize the acts of public officers when they are assailed on the ground of being mala fide. However, as pointed out by the Supreme Court of India in S. Pratap Singh v. The State of Punjab (AIR 1964 SC 72), while exercising this power of judicial review the court should not assume that it is an appellate forum and substitute its own view for that of the authority concerned. The question as to whether an order is mala fide or otherwise depends on the facts and circumstances of each case.

19. In our country litigants frequently accuse the public authorities of malice and ill-will. Often such allegations are not only irresponsible but false. Commenting on a similar tendency in India, in Ghulam Mustafa and others v. The State of Maharashtra and others [(1976) 1 SCC 800], the Indian Supreme Court observed that they are "the last refuge of a losing litigant." Therefore, it is imperative that the courts examine every case with due care. Some of the important principles that have developed over time in this regard may be stated as under: (i) The expression 'mala fide' has a definite significance in the legal phraseology and the same cannot possibly emanate out of fanciful imagination or even apprehensions but there must be existing definite evidence of bias and actions which cannot be attributed to be otherwise bona fide - actions not otherwise bona fide, however, by themselves would not amount to be mala fide unless the same is in accompaniment with some other factors which would depict bad motive or intent on the part of the doer of the act.6 (ii) Mala fides is one of the most difficult things to prove.7 (iii) The burden of establishing mala fides is very heavy on the person who alleges it. The allegations of mala fides are often more easily made than proved, and the very seriousness of such allegations demands proof of a high order of credibility.8 (iv) The question as to whether an action is mala fide or not is a pure question of fact.9 (v) A mere allegation that an action has been taken wrongly is not sufficient to establish that it is mala fide.10 It must be specific. In other words, mala fides must be pleaded with particularity.11 Vague and general allegations are not acceptable.12 The court cannot make a roving inquiry to "fish out" a case.13 (vi) Neither express nor implied malice can be inferred or assumed. There is a presumption of regularity with regard to all official acts and that presumption must be rebutted.14 (vii) When a person alleges mala fides of one kind he should not be allowed to adduce proof of any other kind.15 (viii) The person pleading mala fides must support his allegation with some evidence to make out a prima facie case which may persuade the court to issue notice to the other side and call upon it to produce evidence in its possession.16 (ix) Ordinarily the mala fide being a question of fact is to be proved through evidence but the court may take into consideration the circumstances leading to the action and the motive behind it for determination of inferential question of mala fide.17 (x) The court should consider all the allegations carefully. At times mala fides may be inferred from a single circumstance while in other cases such inference can be drawn only when the facts are appreciated holistically.18 (xi) When the allegations of malice are seriously disputed and the case cannot be decided without recording evidence, the aggrieved party should be asked to seek his remedies through a civil suit.19 (xii) When mala fide on the part of the concerned authority is apparent on the face of the record, the court seized with the matter should not shut its eyes and take notice thereof.20 (xiii) A case of mala fides cannot be built on the basis that there is "universal malice" against a particular class or section of the people. Thus, action taken, for instance, to acquire lands or take over industries or banks on the basis of a policy intended for introducing a more socialistic system cannot be characterized as action taken mala fide. But in order to make out a case of mala fides, an individual must establish that his land was taken not for the purposes authorized by the law but for the personal aggrandizement of the person empowered with the power to make the order of acquisition, or because the person so authorized to take action bore any personal grudge against the person in respect of whose lands or properties action has been taken. Similarly, if the acquisition of land or the taking over of industries is authorized in certain specified circumstances and for certain specified purposes, then the taking of action in such a case for purposes not so specified or in circumstances not provided for by the law would amount to colourable exercise of power or a fraud upon the law.21 (xiv) The person to whom personal mala fides or malice in fact is imputed should be impleaded as a respondent in the proceedings and he should be afforded an opportunity to meet with those allegations.22 (xv) A criminal prosecution, if otherwise justifiable and based upon adequate evidence does not become vitiated on account of mala fides or political vendetta of the first informant or the complainant.23 (xvi) In the case of detention of a person the initial onus is on the detaining authority to prove that the detention is lawful but where the action is alleged to be mala fide the one who levels the allegation is required to establish it.24 (xvii) mala fides cannot be attributed to the legislature and a primary legislation (as distinguished from subordinate legislation) cannot be struck down on this ground.25

20. In the present case the Petitioner's plea that the impugned show-cause notice is actuated with malice is vague and unsubstantiated. It has no legs to stand on.

21. There is one more issue. It is a trite law that an intermediate action or step in departmental disciplinary proceedings cannot be assailed through a constitutional petition. In this regard reference may be made to Abdul Wahab Khan v. Government of the Punjab and 3 others (PLD 1989 SC 508), Muhammad Javed v. Executive District Officer (Education) Sialkot and 2 others (PLJ 2002 Lahore 1393) and Syed Khalid Mehmood Bukhari v. G.M. (HRO) PTCL and others (2012 PLC (C.S.) 1366). The instant petition is not maintainable on this score as well.

22. For all the above reasons, this petition is dismissed in-limine.

23. Before parting with this order, I place on record my appreciation for the research done by Mr. Muhammad Shafiq, Research Officer of this Court. MH/R-16/L Petition dismisse