' CH. HASAN NAWAZ (MEMBER).--In the present appeal under section 4 of the Service Tribunals Act, 1973, Qazi Muhammad Inayatullah appellant who had been serving the respondent as Line Superintendent 1 in the Office of the chairman Area Electricity Board, Wapda, Gujranwala, has challenged the validity of his premature retirement ordered by the Authority under section 17(1-A) of the WAPDA Act on 12-1-1983.
2. Section 17(1-A) of the Act provides that: "Notwithstanding anything contained in subsection (1) or any rules made, or orders or instructions issued, by the Authority, or in the terms and conditions of service of any person employed or serving under the authority, the authority may at any time retire or remove from its service any person without assigning any reason, after giving him not less than 30 days' notice or pay for the period by which such notice falls short of 30 days."
3. In 1986 SCMR 18, the following observations were made by the Supreme Court while deciding a few appeals giving rise to the common questions of law: "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."
4. An application to the appellant's pleadings would show that no exception has been taken either to the competency of the Authority taking action under section 17(1-A) or the amenability of the individual in respect of whom such power has been exercised. The main ground on which the validity of the order of premature retirement is being challenged by the appellant is the presence of taint of mala fide and bias in exercise of the power conferred on the Authority. The gist of appellant's pleading constituting this ground is that during his service in Gujranwala Division No, 1, Baghbanpura Sub-Division East, WAPDA in January, 1980, the then Executive Engineer, Mr. Mazhar All Usmani became inimical towards him, because he refused to accede to his demand for illegal gratification either by installation of illegal connections or doing other such things in the performance of his official duties. The details are unnecessary and it will be sufficient to mention, for the sake of emphasis, that the entire structure of the appellant's case is based on the Executive Engineer's towards him which ultimately resulted in a recommendation for his premature retirement from service under section 17(1-A) of the WAPDA Act.
5. In the background of these facts, what requires to be seen is whether the exercise of legislative power by the Authority in the present case against the appellant was mala fide and the result of aforementioned Executive Engineer's grudge against the appellant. As already pointed out, the presence of mala fide intention has been relied upon as the main ground against the impugned order. There is, however, nothing on the record to show that Mr. Usmani, Executive Engineer ever demanded illegal gratification from him and that he became inimical towards him on account of his refusal to accede to his demand. To say nothing of the absence of evidence in support of this allegation, it is difficult to spell out even a feeble attempt by the appellant to substantiate it.
6. This is a very prominent circumstance in view of the Provisions of Rule 6(2) of the Service Tribunals (Procedure) Rules, 1974 which lays down that if malice, fraudulent intention, knowledge or other condition of mind, including legal or factual mala fides is alleged in an appeal, the memo. Of appeal shall state clearly the facts constituting such mala fides, fraudulent intention, knowledge or other condition of mind or as the case may be legal or factual mala fide and be accompanied, besides the documents specified in clause (e) of sub-rule (1), by a summary of the documentary or oral evidence which the appellant proposes to produce in proof of the allegations and an affidavit in support of the contents of the summary.
7. We find that in the present case, in spite of the lengthy pleadings regarding the presence of mala fide intention, the appeal was neither accompanied by a summary of documentary or oral evidence to be relied upon in proof of the allegations, nor an affidavit in support of the contents of any such summary. We, therefore, feel no hesitation in maintaining that the pleading regarding absence of bona fide intention in the present case did not serve any purpose other than a vain attempt to introduce an element of plausibility in an otherwise empty and hollow case.
8. Under the circumstances, the appellant's case has no legs to stand on, especially in view of other material on the record which goes a long way to establish that his integrity has seldom been above-board and that his conduct left almost everything to be desired. As we see, he was served with a show-cause notice dated 15-3-1981 by the Chief Engineer, Gujranwala Region on 25-3-1981 wherein it was alleged that he was responsible for overloading. 25 KVA transformer by giving connection against Application No, 48/1, which ultimately resulted in damage to transformer. His reply (Annex. H) to this notice makes an interesting reading. He seems to have made an attempt to cause an impression that he did it either at the instance of Mr. Usman Haider, S.D.O., Baghbanpura Sub-Division or any other person inchargc, We feel no hesitation in saying that the allegation contained in the notice against the appellant was not without substance and that we need not have recourse to any evidence in support. The evasive nature of his pleadings to the notice without a specific denial is sufficient to establish that he could not exonerate himself of the charge.
9. Another show-cause notice dated 5-8-1981 purporting to have been issued by Ch. Khadim Hussain, Chief Engineer, (E), Gujranwala Region was served on him on 17-6-1981 with the allegation that he did not instal any electricity connection against applications No, 76 and 78/B-1, although the connections were shown on paper to have been installed. Here again; his reply to the notice does not contain any specific denial and his pleadings are clearly so evasive, as would lead any person to the conclusion that the charge was not wholly without substance. Like in the case of previous notice, he seems to have made an unsuccessful effort to cause an impression as if he acted on the orders of other persons and that he was not directly responsible.
10. Earlier, the record bears out, on 2-2-1981, he was suspended by the Chairman, AEB, Gujranwala for misconduct on account of illegal shifting of electricity meter of consumption power A/c No, 1686/01/instal and 168602-light. He has pleaded that this shifting was in compliance with the order of the Sub-Divisional Officer and that the appellant had no concern with the matter. Reliance in support is on Sundry Jobs Order Annex. (C), Payment Reccipt (Annex. D) and Paid Bills (Annex. E).
These documents are not, however, sufficient to establish that the appellant was not responsible for this illegal shifting of the meter.
11. Further, the respondents' pleadings bear out that while working as Line Superintendent 1 in Kamoke Sub-Division during July, 1978, he was charge-sheeted for negligence towards "maintenance work" which resulted in fatal accident to one Khushi Muhammad, Lineman-1 and serious injuries to the Assistant Lineman on 17-7-1978. He was penalized for this negligence by order dated 3-10-1978 (Annex. RI) by censure and stoppage of two increments without future effect. It is pleaded that the department had to suffer heavy loss in the shape of compensation to those involved in the accident.
12. The written statement further says that while working at Kamoke Sub-Division, he was again charge-sheeted on 24-5-1979 for preparing wrong estimate against applications Nos. 1328/TW and 1393-N-T.W. He was again penalized by the Chief Engineer by order dated 12-11-1979 which caused another stoppage of annual increment for one year without future effect (Annex. R-2).
13. Therefore, under the aforementioned circumstances, we are in no doubt that the appellant's service record was tainted with acts of negligence, such as constituted misconduct of grave nature. The department were fully justified in doubting his integrity and coming to the conclusion that he was liable to action under section 17(1-A) of the Act. Therefore, it is not possible to agree with the contention of the appellant's learned counsel that his premature retirement from service suffers from mala fide in fact.
14. During the course of arguments, mala fide in law was also relied upon by his learned counsel as one of the grounds for cancellation of the impugned order. He argued that proceedings under the (E & D) Rules were initiated against him in the first instance and that recourse was had to the provisions of section 17(1-A) of the Act without completion of those proceedings. It was contended that this course was adopted merely because the charges against the appellant could not have possibly been substantiated. We find it rather difficult to agree because the respondent authority was within its statutory powers to proceed against the appellant, as was done, in this case, irrespective of the initiation of disciplinary proceedings in the first instance. This procedure did not offend against any law. We have already dealt in detail with the allegations of fact against the appellant and we have no doubt in our minds that the circumstances of this case did warrant an action under section 17(1-A). No enquiry was required to be held in this case for further verification of the truth of allegations against the appellant, in the presence of his evasive pleadings to the notices.
15. Mention has also been made of the respondents' instructions circulated through circulars dated 1-11-1975 and 17-4-1982, laying down certain guidelines for taking action under section 17(1-A) of the Act. Under these instructions, this was to be pressed into service against disobedient, corrupt and highly inefficient officials. In the first place, these circulars did not have the force of law. Even otherwise, as already found in the preceding paragraphs, the department were fully justified in finding that the appellant had all the disqualifications, as would attract the application of section 17(1-A) of the Act.
16. For these reasons, we hold that there is no ground for setting aside the impugned order of the appellant's premature retirement dated 12-1-1983. The appeal is dismissed as being without any force with no order as to costs.