' TASSADUQ HUSSAIN JILLANI, J.---Petitioner while serving as security Assistant Sub-Inspector in the Inter Services Intelligence at the Lahore Office of the respondent-organization was proceeded against on the charges as under:-- "WHEREAS YOU, TEV-228 Mr. Tabassam Shahzad, Security Assistant Sub-Inspector (Basic Scale-9) of Directorate-General Inter Services Intelligence allegedly committed the following acts of omission and commission:--
(a) That you TEV-229 Mr. Tabassam Shahzad, Security Assistant Sub-Inspector, have provided forged medical certificates from District Headquarters Hospital, Faisalabad to cover your absence period from 11 December, 2006 to 23 April, 2007.
(b) That you TEV-228 Mr. Tabassam Shahzad, Security Assistant Sub-Inspector, have leveled false allegations against your superior officers.
(c) That you TEV-228 Mr. Tabassam Shahzad, Security Assistant Sub-Inspector, remained absent from duty without any intimation/prior permission from 11 December 2006 to 27 August 2007;
(2) AND, WHEREAS, the above act on your part falls in the ambit of definition of "MISCONDUCT" in terms of para 2(b) of the "Removal from Service (Special Powers) Ordinance, 2000" as amended.
(3) AND, WHEREAS, the competent authority is of the opinion that the aforesaid charges, if established, would call for a major penalty including Dismissal from Service as prescribed in Section 3 of the Ordinance ibid."
2. The inquiry culminated in the award of major penalty of dismissal from service which has been upheld by the learned Federal Service Tribunal in dismissing petitioner's appeal.
3. Learned counsel for the petitioner seeks leave on the ground that the proceedings initiated against the petitioner were motivated by malice; that the Inquiry Committee was biased inasmuch as one of Member personally went to the District Headquarter, Faisalabad to verify the correctness of the medical certificate tendered by the petitioner in proof of his sickness; that the allegation of producing bogus medical certificate was incorrect; that petitioner had agitated this matter in a Constitutional Petition; that during inquiry petitioner was not allowed to cross-examine the witnesses which is a mandatory provision in terms of section 5(c) of the Removal from Service (Special Powers) Ordinance, 2000 and that even in the domestic inquiry the petitioner had a right to avail the benefit of the due process of law. Learned counsel in support of the submissions, relied on "Ghulam Muhammad Khan v. Prime Minister of Pakistan and others" (1996 SCMR 802), "Muhammad Zaheer Khan v. Government of Pakistan through Secretary, Establishment and others"
(2010 PLC (C.S.) 559) and "Jan Muhammad v. The General Manager, Karachi Telecommunication Region, Karachi and another" (1993 SCMR 1440).
4. Learned Deputy Attorney-General defended the impugned judgment by submitting that petitioner while serving in a Disciplined Force has been found guilty of misconduct inasmuch as he remained absent for quite some time without leave; that in order to justify his absence petitioner tendered medical certificate purported to have been issued by the DHQ Hospital, Faisalabad; that on verification the signatures on those certificates were found to be bogus; that during inquiry petitioner was given a fair opportunity to defend himself; that the standard of proof in domestic inquiry is distinct from the standard of proof of trial by a Court of plenary jurisdiction and that the charged leveled against the petitioner were proved during inquiry. In support of the submission made the learned Law Officer placed reliance on "Allah Yar v. General Manager, Railways Headquarters, Lahore and another" (2001 SCMR 256), "Najam-uz-Zaman and others v. Engineer-in- Chief, G.H.Q., Rawalpindi and 2 others" (2005 SCMR 1802), "Managing Director, NBF, Islamabad and 2 others v. Muhammad Arif Raja" (PLD 2006 Supreme Court 175) and "Government of Pakistan through Secretary M/o. Finance and others v. Asif Ali and others" (2006 SCMR 1005).
5. Having heard learned counsel for the petitioner and learned Law Officer and having gone through the enquiry report as also the concise statement filed by respondent-department before this Court, we find that the service profile of the petitioner does not reflect a happy state of affairs.
A brief reference to certain parts of the concise statement would be in order which are as follows:-- "2. Right from his enrollment, Mr. Tabassam Shahzad did not take any interest in the service. He was detailed on Field Staff Basic Intelligence Course-40 (mandatory for the field staff) starting from 8 July 2002 in Defence Service Intelligence Academy (DSIA). He, however, did not report for the training course and absented from duty without approval (Annexure "A"). Later, he sent two medical certificates issued from Moon Clinic, Faisalabad and verified by Medical Superintendent Service 'Hospital, Lahore (Annexure "B"). On verification, the said medical certificates were found forged/faked (Annexure "C") and he was accordingly imposed minor penalty of censure (Annexure "D").
3. Due to his continuous lack of interest in the service, Sector Commander, Sector Headquarters, Lahore recommended him unsuitable in the service in 2005 (Annexure "E").
4. On 27th May, 2006, he was posted to Sub Sector Quetta vide posting order (Annexure "F") and on 20 November, 2006 he was relieved from duty at Sub Sector Headquarters Lahore and was directed to report Sub Sector Quetta on 11 December, 2006 after availing the joining time (Annexure "G'). Presenting his transfer to Sub Sector Quetta, TEV-228, and Mr. Tabassum Shahzad resigned from service on 18 November, 2006 (Annexure "H").
5. Later, the individual started sending medical chits issued from District Headquarters Hospital, Faisalabad in all the medical chits, the mere disease was indicated as "Backache" (Annexure "J"). It may be mentioned that no proper medical history sheet along with suggested clinical or pathological medical tests was forwarded by the individual to the department.
6. It may also be mentioned that except two, medical chits ere neither signed by any doctor nor had the official stamp of the doctor/countersigned by the Additional Medical Superintendent as per practice in vogue.
7. It may also be mentioned that all the civilian employees of ISI are indoor/outdoor entitled patients in MHs/CHMs but the individual did not avail the facility and instead preferred to get the medical treatment from civil/private clinic/hospitals.
8. In March 2007, TEV-228, Mr. Tabassum Shahzad, SASI was directed to get second medical opinion from CMH, Lahore. The individual was thoroughly checked by different doctors in CMH Lahore. His number of tests including X-Rays and MRI were conducted and no abnormality was found. He therefore, was declared fit by the Neurosurgeon, CMH Lahore (Annexure "K").
9. He was again checked by CMH Quetta in September 2007, where Lieutenant Colonel Syed Atif Mehmood Kazmi, classified Neorosurgeon, CMH Quetta found "no Deficit". He has also observed unwilling for operation (Annexure "L").
' In January 2008, an inquiry committee was constituted to enquire the factual position about his absence and authenticity of medical certificates. The individual was attached with Sector Headquarters Punjab, Lahore. He was given full opportunity to be present during the inquiry proceedings and cross-examine the witnesses. The inquiry committee vide its report dated 30-11- 2008 recommended that he be removed from the service or in the alternative his resignation may be accepted."
6. The allegations leveled are serious and during the enquiry which was carried out by a committee comprising of three members, the documentary evidence was led to prove the charges framed and nothing tenable was brought on record by the petitioner to controvert the evidence led. The argument of learned counsel for the petitioner that one of the Member of the Committee for mala fide reasons reduced himself to the level of a witness in the inquiry when he visited the DHQ Hospital, Faisalabad to verify about the genuineness of the certificate produced by the petitioner is not tenable because it was for the inquiry Committee to decide how best to verify the correctness of the said medical certificate. Even otherwise petitioner in the body of the petition has not leveled any personal allegation of mala fides against the said member or any other member of the Committee which could persuade us to conclude that the Committee was motivated by malice in making a report against the petitioner. It is by now a well settled proposition of law that malice and mala fide are questions of fact which have to be proved by leading evidence in absence of which no adverse presumption could be drawn qua proceedings initiated under the law and order passed by the competent authority. Mere .Vague allegation of mala fides would be of no avail to the petitioner. Dilating on the concept of mala fides this Court in the case of "Federation of Pakistan v. Saeed Ahmad Khan and others" (PLD 1974 SC 151) has observed as follows:-- "(d) Mala fides---Meaning---Burden to prove, lies on person alleging---Presumption of regularity attaches to all official acts---Presumption rebuttable.
10. Mala fides is one of the most difficult things to prove and the onus is entirely upon the person alleging mala fides to establish it, because, there is, to start with, a presumption of regularity with regard to all official acts, and until that presumption is rebutted, the action cannot be challenged merely upon a vague allegation of mala fides. Mala fides must be pleaded with particularity, and once one kind of mala fides is alleged, no one should be allowed to adduce proof of any other kind of mala fides nor should any enquiry be launched merely on the basis of vague and indefinite allegations, nor should the person alleging mala fides be allowed a roving enquiry into the files of the Government for the purposes of fishing out some kind of a case. [p. 170] G.
Government of West Pakistan v. Begum Agha Abdul Karim Shorish Kashmiri PLD 1969 SC 14 ref.
"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 authorized by the law under which the action is taken or actions 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. A mere allegation that an action has been taken wrongly is not sufficient to establish a case of mala fides, nor can a case of mala fides be established on the basis of universal malice against a particular class or section of the people."
6-A. The contention of learned counsel for the petitioner that mode of recording of evidence by the enquiry committee was violative of provisions of Qanun-e-Shahadat Order; that the evidence was recorded in question and answer form or that he was not allowed to cross-examine some witnesses appear to underpin the impression that it was a regular trial and overlooks the fact that it was a departmental/domestic enquiry in which the provisions of Qanun-e-Shahadat Order may not be applicable stricto sensu. In Najam-uz-Zaman v. Engineer-in-Chief, GHQ, Rawalpindi (2005 SCMR 1802), a similar view came up before this Court and such an argument was repelled. This Court observed as follows:-- "The Qanun-e-Shahadat, 1984 has been made applicable to all judicial and quasi-judicial proceedings before any Court, Tribunal or authority when exercising such powers or jurisdiction but in a departmental inquiry, the strict application of rule of evidence is not the requirement of law and an Inquiry Officer need not follow the method of recording the statement of a person by a regular Court or a Tribunal established under the law, therefore, the manner of recording the statement of the petitioner by the Inquiry Officer in question and answer form, would not render their statements inadmissible in evidence. In the departmental inquiry, the statement of a witness or an accused official is not recorded on oath, therefore, it was not necessary for the Inquiry Officer to record the statements of the petitioners in narrative form and their statements recorded by the Inquiry Officer in question and answer form containing their admissions of misappropriation of Government funds were admissible in evidence which could safely be relied upon as conclusive proof of their guilt. In the present case record had not shown that the admissions madt by the petitioners in their replies to the questions put to them by the Court of Inquiry were obtained through coercion and were not voluntary. Law does not emphasize for the strict application of Qanun-e-Shahadat, 1984 to the departmental inquiries rather the applicability of general principles of law of evidence would sufficiently meet the ends of justice, therefore, the objection regarding the method of recording the statements of the petitioners would be of no significance. However, it is an essential requirement of law that the charge must be specific and capable of conveying the exact nature of allegation so that accused officer. Could meet the charge and he should also be provided proper opportunity of making his defence. This is correct that the proceedings in the departmental inquiry are not judicial proceedings and the Inquiry Officer is not required to strictly follow the procedure of a judicial inquiry but nevertheless, the inquiry cannot be held in an arbitrary manner and rules of natural justice must be followed. In short, in the departmental inquiries, the principles of natural justice and fairness must be adhered to and the Inquiry Officer must provide fair chance to the accused official of cross-examination to the witnesses and production of evidence in rebuttal but the Inquiry Officer is not required to strictly observe requirement of the procedural law in the manner as is followed by the regular Courts and Tribunals established under law. The general practice is that the statement of a witness or an accused official, in the departmental inquiry is recorded in the narrative form but in the present case, the Inquiry Officer had chosen to record these statements in question and answer form and since no specific method was provided in law for recording the statement of a person by the Inquiry Officer, therefore, the manner in which the statements of the petitioners were recorded, was not in violation of law. The Inquiry Officer being not well conversant with the law, could not be expected to strictly follow the procedure and consequently a procedural mistake, if any, would neither affect the inquiry proceedings nor the ultimate result on merits. It is also not the requirement of law that department must produce large number of witnesses in support of the allegation rather evidence of sole witness or admission of an accused official, can be considered sufficient to prove the charge."
7. Having gone through the enquiry report and for reasons given above, we do not find enquiry report and the penalty awarded to be arbitrary or against the relevant rules and the law declared: Petitioner's learned counsel has not raised any question of law of public importance within the meaning of Art.212(3) of the Constitution to warrant interference. The petition lacking in merit is dismissed and leave refused.