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Civil Appeals Nos. 805, 806 and 808 of 1984 and Civil Petitions Nos.176‑R and 177‑R of 1985, decided on 14th December, 1985.

(On appeal from the judgment, dated 9‑6‑1984 and 15‑12‑1984 of the Service Tribunal in A peals Nos. 75(R)/84, 74(R)/84, 76(R)/84 and Service Appeals Nos. 11(R)/84 and 118(R)/84).

‑‑‑Art. 212(3)‑‑West Pakistan Water and Power Development Authority Act (XXXI of 1958), S.17(1‑A)‑‑Civil service misconduct‑‑Removal from service‑‑Plea of mala fide‑‑Different treatment /punishment for different officers though all involved in misconduct‑‑Order set aside by Service Tribunal on ground of unfair discrimination, arbitrary and mala fide exercise of powers‑‑Appeal before Supreme Court‑‑No basis having been laid by Tribunal for asserting that cases of all officers were identical, unfair discrimination not established‑‑Unless identity of interest and conduct of all officers was established, mere fact that different kind of action was recommended against different officers, could not make action ordered as unjustified discrimination‑‑No finding of mala fide could be recorded merely on basis of surmises, assumptions, assertions and bare allegations‑‑Essential requirements for establishing mala fides lacking, appeals accepted, orders of Service Tribunal set aside and cases remanded for decisions afresh‑‑Petitions for leave to appeal challenging orders based on impugned decision of Tribunal also converted into appeals and remanded for decision afresh.

Fauji Foundation and another v. Shamimur Rehman P L D 1983 SC 457 ref.

‑‑‑Essential requirements‑‑Particulars and proof‑‑Mala fide has to be specifically pleaded and legal proof adduced to establish same‑‑No finding of mala fides can be recorded merely on basis of surmises, assumptions, assertions and bare allegations.

Fauji Foundation and another v. Shamimur kehman P L D 1983 SC 457 rel.

‑‑S. 17(1‑A)‑‑Removal from service‑‑Order set aside by Service Tribunal only on ground of action being mala fide and arbitrary‑‑Appeal before Supreme Court‑‑Plea raised on behalf of employees that they were entitled to get their orders of retirement set aside on basis of other pleas taken by them in their appeals which were not decided by Tribunal‑‑Held: Pleas raised by employees which needed consideration having not .been decided, order set aside and case remanded for decision afresh in light of other pleas raised.

Maulvi Sirajul Haq, Advocate Supreme, Court with M.A. Siddiqi, Advocate‑on‑Record for Appellants.

Imtiaz Muhammad Khan, Advocate‑on‑Record for Respondents (in Civil Appeals).

Raja M. Anwar, Advocate Supreme Court, Qazi Khalid Iqbal, Advocate Supreme Court and Ch. Akhtar Ali, Advocate‑on‑Record for Respondent (in C.P. No. 176‑R of 1985).

Ch. Akhtar Ali, Advocate‑on‑Record for Respondent (in C. P. No.177‑R of 1985).

Date of hearing: 14th December, 1985.

.‑‑This judgment will dispose of Civil Appeals Nos. 805, 806 and 808 of 1984 and Civil Petitions Nos. 176‑R and 177‑R of 1985, as they involve common questions of fact and law.

The relevant facts are that the respondents in these five appeals are Engineers and were serving in the Water and Power Development Authority (WAPDA). The allegations against them were that they were found responsible, alongwith others, in an enquiry conducted by an Enquiry Committee consisting of the Chief Engineer (P.‑II), the Director (Sureveillance) and the Deputy Chief Auditor (Lahore Region) against 87 officers/ officials of verious lapses, omissions and commissions, which resulted in a loss of Rs.90,62,862. to WAPDA. This Enquiry Committee had been constituted to scrutinize the facts of the case and fix responsibility of the loss on the officers/officials involved. The Enquiry Committee, in its recommendation, had recommended taking of action under section 17(1‑A) of the WAPDA Act against some of the officers (including the respondents in all these five cases); initiation of action against 18 other officers under the WAPDA (Efficiency and Discipline) Rules, who were involved in this matter but had caused lesser financial loss to the Authority, a written reprimand in the shape of Chairman's severe displeasure (record-able) who were found guilty of "major mistake" of carelessly distributing the fund and remaining ignorant about the irregularities and serving of written warning to some other officers who were responsible for various lapses and acts of omission and commissions but had not acted with mala fide intention.

The Authority accepted the recommendation of the Enquiry Committee in the case of the respondents in these five matters but in respect of most of the other officers did not do so and instead passed different orders.

All the respondents filed appeals to the Service Tribunal to challenge the orders of their retirement under section 17(1‑A) of the WAPDA Act. However, the appeals of the respondents (in Civil Appeals Nos. 805, 806 and 808 of 1984: namely, Amjad Hidayat Butt, Shahid M. Akhtar and Muhammad Makhdoom Tariq) were taken up earlier and disposed of together by a consolidated order passed on 9‑6‑1984.

In its aforementioned order, the Tribunal was of the view that the Enquiry Committee had recommended different treatment for different officers. While removal under section 17(1‑A) was recommended in the case of the respondents; action under the Efficiency and Discipline Rules was recommended against some others and administration of warning or reprimand in case of still some others, although all were allegedly involved in the misconduct. It was further observed that this discrimination was further aggravated in the sense that the Authority approve the removal of the respondents under section 17(1‑A) of the WAPDA Act‑‑but did not approved the recommendation regarding the proceedings against 18 officers under the Efficiency and Discipline Rules as recommended by the Enquiry Committee and also diluted action against the other category of the officers, found involved in the misconduct. The Tribunal further held that the right course of action for the Authority was to proceed under the Efficiency and Discipline Rules against all the persons involved in the affair, without any discrimination.

In this view of the matter, it held that the impugned order of the Authority was not passed in bona fide exercise of powers and could not, therefore, be sustained under section 17(1‑A). The appeals filed by the respondents (in the abovementioned three appeals) were, accordingly, accepted and the respondents ordered to reinstate them into service, with all the consequential benefits.

Subsequently, when the appeals of the respondents in Civil Petitions Nos. 176‑R and 177‑R of 1985 came up for hearing (which came up for hearing before another Bench of the Service Tribunal) the said learned Tribunal adopted the above decision, observing:‑‑

"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 case carry considerable weight. In these circumstances, we have no other choice but to dispose of these two appeals also in the same manner in which the appeals of the other three engineers have been disposed of."

Accordingly, the appeals filed by the respondents in the said two cases were also accepted and the order: made against them under section 17(1‑A) was set aside, alongwith the award of all the consequential benefits. It was, however, also observed that the Authority can proceed against the said respondents under the WAPDA (Efficiency and Discipline) Rules, if so advised.

The WAPDA has now challenged the orders in both the sets of cases, in this Court by these appeals.

Since the decision of the Service Tribunal in the case of the respondents (in Civil Petitions Nos. 176‑R and 177‑R of ,1985) is based on the decision of the Tribunal given earlier, the cases of the respondents (in Civil Appeals Nos. 805, 806 and 808 of 1984, wherein the said decision was made) must be examined first and its validity determined.

The Tribunal, in the said case, 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.

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 no finding of mala fides can be recorded merely on the basis of surmises, assumptions, assertions and bare allegations. The essential requirements for establish mala fides were singularly lacking and had clearly not been established by the respondents in Civil Appeals Nos. 805, 806 and 808 of 1984.

Mr. Abid Hassan Minto, learned counsel for the respondents in the above appeals, however, argued that the said respondents had raised a large number of other issues in their appeals but the Tribunal had not adverted to them on its finding that the action taken against the respondents was vitiated on account of arbitrariness and mala fides. He submitted that the respondents were entitled to get their orders of retirement set aside on the basis of other pleas taken by them in their appeals, which were not decided by the Tribunal on account of the view, it itself took, in these cases.

We have gone through the memorandums 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 order 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.

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 client may be somewhat different from those of the respondents in Civil Appeals Nos. 805,806 & 808 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.

There will, however, be no order as to costs in the circumstances of these cases.

M.I. Order accordingly.

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