' SALEEM AKHTAR, J.---The petitioner seeks leave to challenge the judgment passed by the Division Bench of the High Court of Sindh declaring the order of dismissal of the respondent passed without lawful authority, patently illegal and clearly mala fide and coram non judice.
2. The respondent was a member of All India Class-I Service having joined the same in May, 1942.
He remained on various posts and in July, 1958, his services were given on loan to WAPDA on the terms approved by the Central Government and accepted by the petitioner. In July, .1968, he was promoted as Director and was to retire from Government service on 1310-1968 and a notification had been issued to that effect on 12-6-1968. He was not allowed by the Chairman, WAPDA, to proceed on LPR who recommended to the Central Government to grant extension to the-petitioner.
His services were extended for two years in supersession of the earlier notification which was later approved by Special Review Committee appointed by Gen. Yahya Khan. On 6th December, 1969, the petitioner was asked to collect a secret letter received from Government of West Pakistan which turned out to be an order of suspension from service which was passed without any enquiry or notice to the petitioner. On 8th December, 1969, a list of 303 Class-I Officers was published in newspapers as having been suspended under Martial Law Regulation, 1958. Few days thereafter the petitioner received a' charge-sheet and statement of allegations signed by the office of Chief Secretary, Government of West Pakistan. He was required to submit his written defence, if any, within 7 days to the Martial Law Administrator Zone-A, Karachi, communicating if he desired to be heard in person. He submitted his reply but he was not allowed to engage any counsel for pleading his case before the Tribunal. According to the respondent the so-called hearing before the Tribunal was merely a smoke screen and the Tribunal was only to implement the decision already taken by the authorities concerned and communicated to it through a secret list which contained the name of the respondent who was earmarked for dismissal followed by a trial. The respondent was dismissed from service. In 1974 when the Fedeial Service Tribunal was established and jurisdiction was conferred to entertain appeals filed by the Central Government Officers dismissed under M.L.R.
1958, the appeal filed by the respondent was rejected holding that it had no jurisdiction but this order was set aside by the Supreme Court. The Federal. Services Tribunal heard the appeal of the respondent and ordered his reinstatement in service. Special Leave to Appeal was granted by the Supreme Court. However, before hearing, on 30th August, 1982, CMLA Order No,3 of 1982 was promulgated whereby Article 13-A was added to the Provisional Constitution Order purporting to have validated all orders made and actions taken under MLR 58. The petitioner then refused to reinstate him on service. He, however, continued to press his demand for reinstatement but no notice was taken and ultimately the respondent filed Constitution petition which was allowed by the impugned judgment.
3. We have heard Mr. Niaz Ahmed Khan, Advocate Supreme Court, and Mr. Sarmad Osmany, Advocate for the respondent whom special permission to appear was granted. Mr. Niaz Ahmed Khan contended that the order of dismissal was passed by the President whose initial appears on the original and the same has been produced. This document is at page 62 of the paper book but does not contain the initials of the President. However, this document as it exits has not been signed by any other officer who may have submitted it and a. Short initial has been made under the word 'dismissed' in column 'President's Order'. This has seriously been challenged by Mr. Sarmad Osmany. However, we do not wish to enter into that controversy. The High Court has taken the view that the Tribunal's recommendation was merely a command performance as the petitioner had before the reference of the case to the Tribunal decided to dismiss the respondent and put him to trial and the proceedings before the Tribunal were merely a smoke screen to give a colour of validity to a pre-determined decision. This conclusion was drawn by referring to the documents and also to a note in the order of dismissal which reads as follows:- "This officer was held on the list of those officers who were earmarked for dismissal followed by trial."
' Holding that the entire proceeding was a sham and colourable device to dismiss the respondent it was observed that the order was mala fide, coram non judice and without jurisdiction. On these grounds the bar under Article 270-A of the Constitution could not apply. In this regard reliance was.
Placed on the following cases:
(1) Federation of Pakistan v. Malik Ghulam Mustafa Khar PLD 1989 SC 26, in which it was held that 'any action which is mala fide is an act without jurisdiction'.
(2) Abdul Rauf v. Abdul Hameed Khan PLD 1965 SC 671.
(3) Pakistan v. Saeed Ahmed Khan PLD 1974 SC 151.
(4) State v. Ziaur Rehman PLD 1973 SC 49.
' We may observe heie that while referring to the case of Ziaur Rehman and observing that an act done mala fide is an act without jurisdiction it was further held that: "the opposite of this proposition must also be true that an act without jurisdiction is an act done mala fide."
This observation does not seem to be proper and does not lay the correct law. There may be an act without jurisdiction, without being mala fide and, thus, necessarily because such act is without jurisdiction it cannot be termed as `mala fide'. Mala fide is a term known to the jurisprudence and has been explained in the aforestated judgments. Its scope cannot be stretched to the extent by.
Saying that all acts which are without jurisdiction should be treated as mala fide.
4. Mr. Niaz Ahmed Khan contended that there are laches in filing the petition while Mr. Osmany has contended that the petitioner had closed all doors for seeking remedy and the respondent had been pressing it wherever it was possible and there was no negligence on his part. The Division Bench has taken a correct view. We, therefore, refuse to grant leave and dismiss the petition. .