' SARDAR MUHAMMAD RAZA KHAN, J.--- Involving common questions of law and fact, all the appeals aforementioned shall be disposed of through this single judgment.
2. Federation of Pakistan has filed, these appeals against the judgments dated 1-3-2000 passed in the respective writ petitions by Lahore High Court whereby, on acceptance of the writ petitions of the respondents, the Federal Government was directed to implement the orders of Federal Service Tribunal-, reinstating the respondents.
3. Short and relevant background is that the respondents while in the service of Pakistan were dismissed on different dates under Martial Law Regulation No,58 of 1969 by the Military Tribunal established under para.3 of the said Regulation. Subsequently, in the year 1974 when Federal'
Service Tribunal was constituted, all the civil servants dismissed under MLR 58 were enabled to file appeals before such Tribunal on the extended dates.
4. Such appeals before the Tribunal were filed but were dismissed for lack of jurisdiction. The respondents resorted to this Court which, on acceptance of the appeals remanded the matters to the Tribunal holding that it had the jurisdiction. Finally Federal Service Tribunal accepted the appeals on different dates whereby the respondents were reinstated into service from the date of dismissal with back benefits. The Federal Government filed petitions for leave to appeal before this Court but before that the decision could be rendered, through a second amendment in Provisional Constitution Order, Article 13-A of the P.C.O. (now merged into article 270-A of the Constitution) was promulgated whereby all orders made and actions taken under M.L.R. 58 were validated and the jurisdiction of all Courts and Tribunals was barred. The Federal Governmeth taking shelter of the aforesaid provision declined to honour the orders of Service Tribunal and hence the respondents approached the High Court under Article 199 of the Constitution. Through the impugned judgment their appeals were accepted and hence these appeals after leave of the Court.
5. The contest between the learned counsel for the parties was purely legal to the effect that in view of the insertion of Article 13-A in the Provisional Constitution Order through second amendment introduced on 30-8-1982 and the same having merged into Article 270-A of the Constitution of Pakistan, all the actions taken under M.L.R. 58 stood validated notwithstanding the judgments of any of the superior Courts or Tribunals having nullified the action of the authorities under M.L.R. 58 and having reinstated any civil servant. This question is to be answered in the light of what this Court has been holding from time to time with reference to Article 13-A of the P.C.O.
Read with Article 270-A of the Constitution.
6. From the assistance rendered by the learned counsel on either side, we would first refer to the case of M. Yamin Qureshi PLD 1980 SC 22. Though this verdict of Full Bench of this Court is prior to the insertion of Article 13-A of the P.C.O. Yet with reference to M.LR.. 58 of 1969, the ruling is worthy of reference, in principle. It was held that though the regulation had granted validity and immunity from the judicial review through Article 270(4) of the Constitution yet such immunity was enjoyed only by proceedings, orders, or acts, duly taken under law and did not extend to acts etc. Being coram non judice, without jurisdiction or mala fide.
7. A Division Bench of Sindh High Court at Karachi after discussing the facts of the case juxtaposed to Article 13-A of the P.C.O. And Article 270-A of the Constitution, in S.A. Rizvi's case 1991 M LD 1834, by relying upon various judgments of this Court had held that immunity aforesaid is not extended to orders or acts which were patently illegal, coram non judice, without jurisdiction or mala fide. When Federation challenged such judgment before this Court, leave to appeal was refused and the petition dismissed. 1992 SCM R 1309.
8. Again similar matter came before this Court in case of Federation of Pakistan v. Sheikh Abdul Aziz 1998 SCM R 91 where M.L.R. 58 of 1969. Was involved and again it was held that no immunity could be attached to the action of authority constituted under M.L.R. 58(3) where the mind had already been made up to dismiss civil servants whose list had already been prepared much prior to the indictment or formality of appearing before the Tribunal. Any command issued by the higher authorities to such Special Tribunals to dismiss civil servants mentioned in the said list without providing them adequate opportunity of hearing was held to be a mockery of civilized judicial system.
9. The application of Article 270-A was elaborately discussed by a Bench of ten Honorable Judges of this Court in Federation of Pakistan v. Malik Ghulam Mustafa Khar PLD 1989 SC 26 disposing of numerous appeals. It was held that any provision seeking to .Oust the jurisdiction of superior Courts is to be construed strictly with pronounced leaning against the ouster. This Court further observed that acts, orders or proceedings, which are done, made or taken without jurisdiction, mala fide or coram non judice, have not been saved from the scrutiny of Courts by the ouster clause. Further, that if such ouster clause is construed widely, it is most likely to lead to absurd results. This Court emphasized it extremely difficult to interpret as conferring validity and immunity upon such acts, actions or proceedings which were illegal or indefensible even under those provisions which are subsequently validated. It was held that Article 270-A "... Does not take away the jurisdiction of the High Court's from reviewing acts, actions or proceedings which suffered from defect of jurisdiction or were coram non judice or were mala fide. For this purpose it is unnecessary to draw a distinction between malice in fact and malice in law.".
10. It is an irrefutable reality that the existence or otherwise of mala fide is a pure question of fact.
Hence, by pronouncement of law it cannot be determined that a particular act, by a particular authority at a particular time was either bona fide or mala .Fide. No unreasonableness can be attached to an act of Legislature whose every act must be deemed to be fortified by logic and wisdom. If we attribute that logic and wisdom to Legislature, it would be strongly presumed to have existed in case of Article 270-A of the Constitution as well and thus one cannot think of the validation of an act of mala fide, if in the circumstances of each case and as a question of fact, act was in fact mala fide.
11. It is proved in the instant cases that the respondents were dismissed from service on the basis of a secret list of officers prepared beforehand. The officers exercising power under M.L.R. 58(3) were thus, malafidely influenced. They never acted with the application of their own mind and with a sense of imparting justice. The respondents were not allowed to obtain legal assistance. It was despite the fact that under paragraph 3(2) of M.L.R. 58 no action could have been taken by the Tribunal unless opportunity to show cause and opportunity to be heard in person had been provided to the aggrieved person. The Tribunal under M.L.R. 58 proceeded with a predetermined action to be taken in accordance with the secret list provided to it by the higher authorities. The proceedings thus were sham proceedings. A hearing or trial conducted by the Tribunal on the basis of a list of those officers earmarked for dismissal is neither a hearing nor a trial. The principles of audi alteram partem, coram non juiced, lack of jurisdiction and mala fide are squarely and collectively attracted to the case of present respondents.
12. In view of the factual background as well as the law laid down by this Court from time to time, we are of the view that the Federal Government in its-benevolence for the people of Pakistan ought to have honored the decision given by the Federal Service Tribunal. It is sad to observe that they are languishing for the last about three and a half decades. There being no merit in the petitions, these are hereby dismissed.