1980 PLP (C (PLC(CS))

2. The second time he was charge‑sheeted on 12‑8‑1974 while he was Executive Engineer, Electricity at Larkana and had been suspended. He admits that he was also charged with several other acts of misconduct constituting inefficiency, corruption and subversive activities. He had however submitted reply and had been re‑instated without prejudice to the final decision which was to be made after holding formal enquiry against him. Subsequently he was served with Office Order No. 8‑10/13‑CES‑A/64,/23504 dated 19‑8‑1977 where by the Chief Engineer Electricity WAPDA, Hyderabad awarded the punishment of censure to him. The appellant further states that he submitted an appeal against the aforesaid order and had not received any reply. It is admitted position that enquiry was pending till his removal from service.

3. The appellant has challenged the impugned order mainly on the following grounds :‑ (a) That order was issued under section 17 (1‑A) which was added to the WAPDA Act, 1958 on 30th September 1975 by an 'Ordinance No. XVI of 1975 which appears in the Gazette of Pakistan, Extraordinary, Part I on 30th September, 1975 and his removal was on payment of 30 days pay in lieu of 30 days notice. He contends that this was in contravention of the original terms and conditions of his appoint ment which provided for 3 months' notice or 3 months pay in lieu of notice. (b) That since the departmental enquiry was pending against him his removal from service under section 17 (1‑A) was mala fide. (c) That the impugned order was signed by Mr. Muhammad Aslam, Section Officer, Enquiries (WAPDA) who was not an officer normally authorised to issue such an order as the Section Officer concerned with enquiries could only issue such an order as consequence of an enquiry. It is further contended by him that the fact that the enquiry proceedings were subsisting at the time of the removal of the appellant under the amended law raises the presumption that there was no sufficient evidence to sustain charges against him and once the authority had taken recourse to the provisions of the Efficiency and Discipline Rules it was not proper for them to remove him without holding an enquiry. (d) That since the original contract of service provided for notice of 3 months and section 17 (1‑A) of West Pakistan WAPDA Act, 1958 reduced the period to 30 days it affects the original contract between the employer and the employee to the disadvantage of the employee. He has cited the decision reported in P L D 1970 Pesh. 37 in support of the contention that ordinarily an amendment in a statute takes effect prospectively unless the Legislature give it retrospective effect. (e) That section 17 (1‑A) is in derogation of fundamental rights and therefore contravenes the Article 8 of the Constitution sub‑clause (2) which provides that "the State shall not make any law which takes away or abridges rights so conferred and any law made in contraven tion of this clause, shall to the extent of such contravention be void". The appellant has further pointed out that West Pakistan WAPDA Act, 1958 is not specified in the First Schedule of the Constitution of Pakistan as law exempted from operation of Article 8(1)(2).

4. With regard to ground (a) above there is no doubt mentioned in para. 6 of the letter of appointment that it could be terminated by authority at any time without assigning any reason on 3 months notice or 3 months' pay in lieu thereof given to him by the authority. However para. 4 of the letter pro. vides that the appointee will be governed by such conditions of service as the authority may from time to time prescribe so that any change in the condition of service prescribed by the authority under contract of appointment i applicable in case of the appointee. It is also pointed out in this respect that subsection (1‑A) of section 17 specifically provides that the contents thereof shall be effective nothwithstanding anything contained inter alia in the term and conditions of service of any person employed by or serving under the Authority.

5. With regard to ground (b) above a presumption of regularity with regard to all official acts is to be drawn until it is rebutted and the action cannot be challenged merely upon a vague allegation of mala fides. The decision of the Supreme Court reported in P L D 1974 S C 151 fully covers the point. It was inter alia observed that mala fides must be pleaded with particularity and once one action of mala fide alleged no one should be allowed to adduce proof of any other action of mala fide nor should any enquiry be alleged merely on the basis of vague and indefinite allegations. It was also observed that mala fide literally means "in bad faith" and that action taken in bad faith is usually an action taken malaciously in fact, in which the person taking action does so out of personal motives whether to hurt the person against whom the action is taken or to benefit himself. With regard to action taken in colourable exercise of powers for "collateral purposes" not authorised by law it was no doubt held that action taken in fraud of the law is also mala fides.

6. In the instant case there is no allegation of personal grudge or enmity on the part of any functionary of the Authority. The only ground taken is that since that was pending enquiry the powers under section 17 (1‑A) should not have been exercised. The contention could perhaps have some force if at the time that departmental action was started against the appellant, there had been provisions of section 17 (1‑A) available to the Authority. At that time action could have been taken only under the WAPDA Efficiency and Discipline Rules. Section 17 (1‑A) was added in the West Pakistan WAPDA Act, 1958 in September, 1975. Undoubtedly the amendment of the law was made in the circumstances then obtaining and it could be presumed that cases, o pending enquiries were also taken into consideration. There is no indication in the law as amended that action could not be taken in case an earlier enquiry was pending. The position as already stated would be slightly different if authority after having the alternate powers of removal had decided after considering all the circumstances of the case to take recourse to depart mental action and while the enquiry was pending an order under section 17 (1-4).

7. In view of what has been stated above a heavy burden lay on the appellant to prove mala fides and it is obvious that he has not succeeded in doing so.

8. The contention at (c) above appears to have been misconceived as it has been explained on behalf of the respondents that the impugned order was signed by the Section Officer (Enquiries) in accordance with the procedure of Secretariat of the Authority. It is pointed out on behalf of the respondents that the Section Officer signed the order "for and on behalf of the Authority", The learned counsel for the respondents has further pointed out that a similar contention was looked into in Appeal No. 95 (K) 1976 of this Tribunal and the decision was given that the validity of the order cannot be held in question as the order issued was in the name of the Authority from the Secretariat of the Authority.

9. With regard to (d) above, as already stated, since the original contract of service in para. 4 thereof provided that the appointee will be governed by such conditions of service as the authority :nay from time to time prescribe. The aforesaid condition was changed in accordance with the contract with effect from September, 1975 and there is no question about giving the provision retrospective effect.

10. The grounds mentioned at (e) above, is without any substance inasmuch as the appellant has not specifically shown as to which par ticular fundamental right section 17 (1‑A) is in conflict. The contract of service provided for change in the conditions and therefore, there was no vested right in the appellant which may be considered as having been contra vened. There was, therefore, no question of the law being exempted from Article 8(1) and (2).

11. On behalf of the appellant the decision reported in P L D 1968 S C 112 has been relied upon on the point that an order of removal without any proper enquiry should be held void and further that removal "after enquiry" cannot be construed as a discharge in accordance with terms of employment. The decision can be distinguished as facts of that case were quite different in that this is not a case of removal based on service of notice m accordance with Perms of employment but the Authority has acted as it had power to pass the impugned order. I would, therefore, dismiss the appeal.

12. Parties to be informed. SHAH ABDUR RASHID (CHAIRMAN).‑

I agree that this appeal be rejected. Appeal dismissed.