MUHAMMAD IRSHAD KHAN (MEMBER.)-By way of the present appeal the appellant has sought to challenge the order dated the 2nd September, 1976, whereby the appellant was removed from service in exercise of the powers conferred on the Authority under section 17 (1-A) of the WAPDA Act, 1958. The main ground to assail the impugned order taken in the memo of appeal, is the allegation of mala fide. According to the averment made in the memo of appeal, the impugned action was, taken against the appellant on the basis of malicious reports submitted by the C & I Department and on the charge-sheet served upon the appellant in 1974. It has also been averred that action against the appellant could be taken under the Efficiency and Discipline Rules and not under section 17 (1-A) of the WAPDA Act, 1958.
2. When the case was taken up for hearing by this Tribunal on 24-10-1982 the learned counsel for the WAPDA had furnished a copy of para 40 of a file pertaining to the impugned order dated 4-9- 1976. The learned counsel for the appellant insisted that to establish mala fides the entire file was required to be examined by this Tribunal. The Tribunal, therefore, directed the learned counsel for WAPDA to produce on the next date of hearing the entire file. The case was then heard on 17-1-1983 when the learned counsel for WAPDA produced the file but it was noticed by the Tribunal that pages 1 to 8 were missing therein. The Tribunal, therefore, adjourned the case to the following day directing the learned counsel for WAPDA to produce the missing portion of the file also. At the resumed hearing on 18-1-1983 the learned counsel for WAPDA produced not only the missing portion of the said file but also all the relevant record consisting of as many as twelve files. To our utter surprise, however, the learned counsel for the appellant requested for adjournment on the plea that he was not fully prepared to argue the case. We, however, did not find any justification for the adjournment as the case was a pretty old one and indeed not only a number of adjournments were previously allowed at the request of the appellant but we also noticed that the appeal was dismissed for non-prosecution as many as three times i.e. On 26-4-1979, 4-10-1981 and 23-1-1982 but every time, on the petition of the appellant, it was restored. It, therefore, appears to us that the appellant was not interested to pursue his appeal seriously. The request for adjournment was, therefore, not acceded to and we proceeded to examine the case on the basis of pleadings of the parties and the record placed before us.
3. It is a well-established legal position that an action in which the person taking the action does so out of personal motive either to hurl the person against whom the action is taken or to benefit oneself is an action taken maliciously in fact ; and an action taken in colourable exercise of power, that is to say, for collateral purpose not authorised by the law under which the action is taken or action taken in fraud of the law are actions taken maliciously in law. It is, therefore, necessary for a person alleging that an action has been taken mala fides to show that the person responsible for taking the action has been motivated by any 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.
It is also well settled that the onus of proving facts which might constitute mala fides must lie on him who asserts it and this Tribunal must ordinarily presume that all official acts have been done in good faith unless proved otherwise. If the vires of an order of a public authority is challenged on the ground of mala fides the allegations are to be proved as facts in evidence. It may thus follow that mala fide is one of the difficult things to prove and the onus is entirely upon the person alleging mala fides to establish it because, there is a presumption of genuineness and regularity with regard to all official acts and until that presumption is rebutted, an action cannot be challenged merely upon a vague allegation of mala fides, which must be pleaded with particularity and certainty. And if one kind of mala fides is once 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 Department concerned for the purpose of fishing out some kind of a case.
4. We have noticed that the allegations of mala fides had been very vaguely made in the memo of appeal and the appellant did not care even a little, at the time of hearing of the case, to make out a case of mala fides. It is significant that no allegation of any kind has been made against the persons constituting the authority which has taken the impugned action against the appellant. We do not find any substance also in the plea that the action taken against hint was mala fide because it was allegedly taken on the basis of malicious reports and a charge-sheet served on him in 1974.
5. For the foregoing, we do not find any substance in the appeal which must fail and is hereby dismissed accordingly with no order as to costs.