1989 PLP (C (PLC(CS))

CH. HAS AN NAWAZ (MEMBER).--The subject-matter of this appeal under section 4 of the Service Tribunals Act, 1973 is the validity or otherwise of order dated 22-9-1983 passed by the respondent-authority for the appellant's removal from service under section 17(1-A) of the WAPDA Act. 1958, on the recommendations of the Managing Director, Mechanised Construction of Pakistan, Ltd., where he was serving as Senior Storekeeper after having gone on transfer from the Authority on 1-9-1974.

2. The scope of examination of order passed by the Authority under section 17(1-A) of the Act, was laid down by the Supreme Court in Muhammad Arshad Qureshi's case 1986 S C M R 18 in the following words: "The matters required to be examined in scrutinizing 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 fides or bias in exercise of that power, the postulate of legislative authorization to the exercise of public power being that it will be exercised bona fide. It is only after satisfying such tests or requirements that power can be said to have been exercised in a manner to achieve irrevocability or immunity from further scrutiny or substitution."

3. As we see from the facts, there is no dispute in respect of the Authority's competency to proceed under section 17(1-A) of the Act and the appellant's amenability to its jurisdiction. Therefore, the preview of judicial scrutiny of the imputed order in this case is confined to the question whether it should be struck down because of the presence of taint of mala fide or bias in exercise of the powers under the aforementioned provisions.

4. Before making an address to the appellant's pleadings to see whether the presence of mala fide has been relied upon as ground for cancellation of the impugned order, we may make a reference to the provisions of Rule 6(2) of the Service Tribunals (Procedure) Rules, 1974 which are relevant to determine the prerequisites of pleadings on the. subject. The Rule lays down that if malice, fraudulent intention, knowledge or other condition of mind, including legal or factual mala fide, alleged in an appeal, the memorandum of appeal shall state clearly the facts constituting such malice, fraudulent intention, knowledge or there condition of mind or, as the case may be, legal or factual males Fides, and be accompanied, besides the documents specified in clause (e) of sub rule (1), by a summary of the documentary or oral evidences which the appellant proposes to produce in proof of the allegation and an affidavit in support of the contents of the summary.

5. These provisions in view, the first thing to be seen is whether any allegation of legal or factual mala fides has been made in this case by the appellant. In paragraph 7 of the memorandum of appeal, it has been alleged by him "the Local Officers namely Mr. Asghar Butt and Amanullah Khan with the connivance of Muhammad Ramzan (Deputy Manager, Warehouse) started making false and baseless reports against the appellant to the Head Office of M.C.P. Later in the same paragraph, it was pleaded that it was on the basis of these false reports that the Managing Director, M.C.P. recommended the appellant's name to the respondent for action under section 17(1.-A) of the Act: Thereafter, the word "mala fide" has been used in paragraph 10(a) of the grounds of appeal only in a general sense in the context of allegation that the impugned order was passed on the mala fide reports of the officers of M.C.P. working in the Warehouse and that the actions taken on these reports are arbitrary. From these pleadings, it is obviously difficult to spell out a specific allegation of the presence of taint of malice on the part of the officers concerned against the appellant. Even a cursory application to these pleadings would show that no malice has been attributed by the appellant to any specific officer of M.C.P. who can be said to have contrived his removal from service on account of any such malice, even if it be conceded that his pleadings do make it possible to spell out the existence of an allegation of legal or factual mala fide. 5-A. Further, there is no clear statement of facts constituting such malice or fraudulent intention, as could have fulfilled the requirements of Rule 6(2) of the Rules. In the absence of such a statement, it is not possible to make any effective examination of the issue regarding the presence of factual mala fides. It has to be established, like any other facts, and it can be possible only by proving the facts which constitute such malice, fraudulent intention, or knowledge. Still further, the memorandum of appeal is not accompanied by a summary of the documentary or oral evidence which the appellant proposed to produce in proof of the allegation. Nor is there an affidavit in support of the contents of any such summary. Therefore, we do not feel any hesitation in concluding that there is nothing in the pleadings of the appellant which could have made it possible for us to spell out the existence of an allegation of presence of legal or factual mala fide, as could have enabled us to examine the matter from that point of view.

6. Merits apart, there seems to be substance in the contentions that the appeal is barred by time. The impugned order (Annexure-J) was passed on 22-9-1983, whereas the appeal was filed on 8-2-1984 long after the expiry of one month of the communication of the order to the appellant through letter dated 6-10-1983. (Annexure-K). In the application for condonation of delay under section 7 of the Service Tribunals Act, 1973, the reasons mentioned by the appellant is that he made a representation to the Chairman of the Authority under a bona fide impression that he could have come to the Tribunal with an appeal under section 4 of the Service Tribunals Act, 1973, only after exhausting the departmental remedy. We, however, feel that the law on this point is, rather, clear and there was no basis for a belief that a departmental representation was essential before having recourse to this Tribunal. No departmental appeal or representation has been provided anywhere, so as to support the appellant's claim for genuineness of his belief. It is, therefore, held that the present appeal filed by the appellant on 8-2-1984 against the order, dated 22-9-1983 received by him or 6-10-1983 is clearly time-barred.

7. Reliance has been placed by the appellant's learned counsel on Deryal Yousaf v. WAPDA 1982 P L C (C.S.) 354 in support of the contention that appeal is within time. While dealing with the question of limitation, we find that the Tribunal did not deal with the question whether a departmental appeal o~ representation was provided against an order under section 17(1-A) of the Act and whether the time spent m prosecution of such appeal or representation should be excluded in computing the period of limitation. It seems to us that the appeal in that case was held to have been filed within time under the impression that a departmental representation was a legal requirement.

8. For the aforementioned reasons, the appeal is dismissed without any order as to costs.

9. Parties to be informed. AA./494/Sr. F Appeal dismissed.