SAAD SAOOD JAN, J.---These are five appeals by special leave from the judgment dated 22-6- 1989 of the Federal Service Tribunal dismissing the service appeals of the appellants.
2. The appellants were serving as Executive Engineers under the respondent Authority in the Lahore Region between 1981 and 1983. There were allegations of gross irregularities in the purchase and disposal of the stores in the Region. The respondent Authority constituted a Committee consisting, of a Chief Engineer, Director Surveillance, and Deputy Chief Auditor to enquire into the allegations.
During the course of the inquiry the Committee among other, steps issued a questionnaire to various officers serving in the Region including the appellants. It found substance in the allegations and noticed that as a result of the irregularities committed by the various officers including the appellants the respondent Authority had suffered a loss exceeding Rs.90 lacs. The number of officers responsible for the irregularities was stated to be 75.
3. The report of the Committee, spread over three volumes; was examined by a Review Committee comprising the Chief Manager (Administration), Chief Manager (Distribution) and Chief Manager, Finance (Power). The Review Committee divided the officers responsible' for the irregularities into five categories for the purpose of taking disciplinary. Action. It recommended that the offers included in category b' should be removed from service under section 17(1-A), WAPDA Act, and those included in category `c' should be proceeded against under the relevant Efficiency and Discipline Rules. As regards those included in categories `a', `d' and `e' they were to be issued written warnings or conveyed the displeasure of the respondent Authority. The appellants were included in category `b'. The recommendations of the Review Committee were considered by the respondent Authority and so far as the officers included in category `b' were concerned these were accepted. Consequently, the appellants were removed from service under section 17(1-A), ibid.
4. The appellants filed appeals before the Federal Service Tribunal challenging the legality of the orders by which they were removed from service. The learned Tribunal accepted the appeals by two separate orders mainly on the ground that the said orders were mala fide inasmuch as the Review Committee had recommended different kinds of treatment for different officers even though they all were reported to have indulged in similar irregularities. Accordingly, it set aside the impugned orders and directed the respondent Authority to reinstate the appellants in service with all the consequential benefits.
5. From the judgment of the learned Tribunal the respondent Authority came in appeal before this Court. The appeals were accepted and it was held that it had not been shown on the record that in removing the appellants from service the respondent Authority had acted mala fide. It was observed: "We regret that we cannot subscribe to this approach of the Tribunal. No basis was laid by it for asserting that the case 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 arfother v. Shamimur Rehman (PLD 1983 SC 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 to 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."
6. During the course of the arguments it was pointed out that apart from the plea of mala fide there were other grounds also which the appellants had taken to challenge the orders of their removal from service and that these grounds had not been examined by the Tribunal. In the circumstances, the appeals were remanded back to the learned Tribunal for consideration of the grounds not earlier considered.
7. It appears that after the remand the main contention of the appellants before the Tribunal was that in electing to proceed against the appellants under its power under section 17(1-A), WAPDA Act, the respondent Authority had discriminated against them for, officers against whom similar allegations of irregularities had been made were proceeded against under the Efficiency and Discipline Rules and as a result thereof had been lightly let off with just warnings. This contention found favour with one of the learned Members of the Tribunal but was rejected by the Chairman and another Member. Accordingly by a majority judgment the appeals. Of the appellants were dismissed. From the judgment of the learned Tribunal the appellants have come in appeal to this Court.
8. Leave to appeal was granted to the appellants to consider if in the circumstances there was discrimination ex facie to justify interference by the Service Tribunal and also whether the plea of discrimination could be raised in the absence of the parties against whom discrimination was claimed.
9. Before we proceed to examine the questions arising in these appeals it may be mentioned that the scope of an appeal arising from an order made under section 17(1-A), WAPDA Act, is of a limited nature. Thus, in WAPDA v. Muhammad Arshad Qureshi (1986 SCM R 18) the Court observed: "The matter required to be examined in scrutinising 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 fide 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 was not the case of the appellants that the orders by which they were removed from service had been passed by an authority which was not competent in that regard or that the power which had been invoked by the authority to remove them from service was not available to it in their case.
This Court has already held in the earlier round of litigation that there was no basis in the assertion of the appellants that tie orders were mala fide.
10. The case of the appellants is that the division of the officers allegedly responsible for the irregularities into categories `a' to `e' was entirely discriminatory as there was no reasonable basis upon which such a division could have been made. Some of the officers included in the category `c', it was argued, had in fact caused more loss to the respondent Authority than what had been attributed to appellants by indulging in similar kind of irregularities. There was therefore no justification that for the purpose of taking disciplinary action different treatment should have been meted out to the two categories of officers.
11. The contention raised by the appellants before us was examined at some length by the learned Chairman and the two Members of the learned Tribunal. It appears from the majority judgment that the cases of the officers included in category `b' stood on a different footing from those of officers included in category `c'. It maybe mentioned that the allegations against the appellants were that they had made local purchases at exorbitant rates much in excess of their actual requirements of substandard goods from non --manufacturers; further, in order to make the purchases within their competence they had split up the purchaser orders. The learned Tribunal found that the cases of the officers who fell in category `b' were distinguishable from those of officers falling in category `c' inasmuch as the former were the main culprits who had set up bad- precedents and that they had continued to commit irregularities despite warnings given to them by their immediate superiors or the Audit Office. Even if it be open to a delinquent officer to argue that in the matter of punishment he should have been treated in the same manner as another delinquent officer, we consider that the distinguishing features noticed in the majority judgments formed a sufficiently reasonable basis for the respondent Authority to treat the officers included in the two categories differently. We are therefore unable to accept the contention of the appellants that the orders of their removal from service were illegal on account of the discriminatory treatment meted out to them. We would accordingly dismiss Appeals CA. No. 163 of 1990, C.A s. 366 to 368 of 1990.
12. The case of the appellant in appeal CA. No. 365 of 1990 is, however, on a different footing. It appears from the judgment of the learned Tribunal that one of the main considerations which weighed with the respondent Authority in removing him from service was that he had absconded- from his post. This was factually incorrect. From the papers placed on record before us it appears that he was allowed two years leave with effect from 11-4-1982. He was not served with the questionnaire issued by the Committee even though his address during the leave period was with the Chief Engineer. In the circumstances, he could not at all be said that he had absconded from his post. Since one of the main considerations upon which his order of removal is based did not exist we would accept his appeal and set aside the order of removal from service. He should be reinstated in service. This would not, however, prevent the respondent Authority, if so advised, from taking disciplinary action against him on the basis of the alleged irregularities ascribed to him during the period of his posting in the Lahore Region. The period intervening between his reinstatement and removal should be treated in accordance with the relevant service rules depending upon the decision of the respondent Authority whether or not it will proceed to take disciplinary action against him.
13. There will be no order as to costs in these appeals.